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This is a Bill, not an Act. For current law, see the Acts databases.
2010-2011-2012-2013
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Telecommunications Legislation
Amendment (Consumer Protection) Bill
2013
No. , 2013
(Broadband, Communications and the Digital Economy)
A Bill for an Act to amend legislation relating to
telecommunications, and for other purposes
i Telecommunications Legislation Amendment (Consumer Protection) Bill 2013 No. ,
2013
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedule(s) ........................................................................................ 2
Schedule 1--Amendments
3
Part 1--General amendments
3
Do Not Call Register Act 2006
3
Telecommunications Act 1997
4
Part 2--Other amendments
11
Telecommunications (Consumer Protection and Service Standards)
Act 1999
11
Telecommunications Legislation Amendment (Consumer Protection) Bill 2013 No. , 2013
1
A Bill for an Act to amend legislation relating to
1
telecommunications, and for other purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Telecommunications Legislation
5
Amendment (Consumer Protection) Act 2013.
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 Telecommunications Legislation Amendment (Consumer Protection) Bill 2013 No.
, 2013
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,
Part 1
The day after this Act receives the Royal
Assent.
3. Schedule 1,
Part 2
A single day to be fixed by Proclamation.
However, if 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
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 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
Amendments Schedule 1
General amendments Part 1
Telecommunications Legislation Amendment (Consumer Protection) Bill 2013 No. , 2013
3
Schedule 1
--
Amendments
1
Part 1
--
General amendments
2
Do Not Call Register Act 2006
3
1 Section 4
4
Insert:
5
give effect to, in relation to a contract, arrangement or
6
understanding, includes do an act or thing:
7
(a) in pursuance of; or
8
(b) in accordance with;
9
the contract, arrangement or understanding.
10
2 Paragraph 11(9)(b)
11
Repeal the paragraph.
12
3 Paragraph 12(1)(a)
13
Repeal the paragraph, substitute:
14
(a) there is a reasonable likelihood that the other person will give
15
effect to the contract, arrangement or understanding by:
16
(i) making telemarketing calls; or
17
(ii) causing any or all of the employees or agents of the
18
other person to make telemarketing calls; and
19
4 Paragraph 12(1)(c)
20
Omit "covered by", substitute "that are made in order to give effect to".
21
5 Paragraph 12B(10)(b)
22
Repeal the paragraph.
23
6 Paragraph 12C(1)(a)
24
Repeal the paragraph, substitute:
25
(a) there is a reasonable likelihood that the other person will give
26
effect to the contract, arrangement or understanding by:
27
(i) sending marketing faxes; or
28
Schedule 1 Amendments
Part 1 General amendments
4 Telecommunications Legislation Amendment (Consumer Protection) Bill 2013 No.
, 2013
(ii) causing any or all of the employees or agents of the
1
other person to send marketing faxes; and
2
7 Paragraph 12C(1)(c)
3
Omit "covered by", substitute "that are sent in order to give effect to".
4
Telecommunications Act 1997
5
8 Subparagraph 117(1)(e)(i)
6
After "code", insert "on its website,".
7
9 At the end of paragraph 117(1)(e)
8
Add:
9
(iii) the body or association published on its website any
10
submissions that were received from participants in that
11
section of the industry within that period; and
12
10 Subparagraph 117(1)(f)(i)
13
After "code", insert "on its website,".
14
11 At the end of paragraph 117(1)(f)
15
Add:
16
(iii) the body or association published on its website any
17
submissions that were received from members of the
18
public within that period; and
19
12 After section 119
20
Insert:
21
119A Variation of industry codes
22
Scope
23
(1) This section applies if:
24
(a) an industry code is registered under this Part; and
25
(b) the code:
26
(i) applies to participants in a particular section of the
27
telecommunications industry, the e-marketing industry,
28
Amendments Schedule 1
General amendments Part 1
Telecommunications Legislation Amendment (Consumer Protection) Bill 2013 No. , 2013
5
the telemarketing industry or the fax marketing
1
industry; and
2
(ii) deals with one or more matters relating to the
3
telecommunications activities, e-marketing activities,
4
telemarketing activities or fax marketing activities, as
5
the case may be, of those participants; and
6
(c) the body or association that developed the code gives a draft
7
variation of the code to the ACMA; and
8
(d) disregarding any provisions of the code that are not affected
9
(whether directly or indirectly) by the variation, the ACMA
10
is satisfied that:
11
(i) in a case where the code (as proposed to be varied) deals
12
with matters of substantial relevance to the
13
community--the code (as proposed to be varied)
14
provides appropriate community safeguards for the
15
matters covered by the code (as proposed to be varied);
16
or
17
(ii) in a case where the code (as proposed to be varied) does
18
not deal with matters of substantial relevance to the
19
community--the code (as proposed to be varied) deals
20
with the matters covered by the code (as proposed to be
21
varied) in an appropriate manner; and
22
(e) except in a case where the draft variation is of a minor
23
nature--the ACMA is satisfied that, before giving the copy
24
of the draft variation to the ACMA:
25
(i) the body or association published the draft variation on
26
its website and invited participants in that section of the
27
industry to make submissions to the body or association
28
about the draft variation within a specified period; and
29
(ii) the body or association gave consideration to any
30
submissions that were received from participants in that
31
section of the industry within that period; and
32
(iii) the body or association published on its website any
33
submissions that were received from participants in that
34
section of the industry within that period; and
35
(f) except in a case where the draft variation is of a minor
36
nature--the ACMA is satisfied that, before giving the copy
37
of the draft variation to the ACMA:
38
(i) the body or association published the draft variation on
39
its website and invited members of the public to make
40
Schedule 1 Amendments
Part 1 General amendments
6 Telecommunications Legislation Amendment (Consumer Protection) Bill 2013 No.
, 2013
submissions to the body or association about the draft
1
variation within a specified period; and
2
(ii) the body or association gave consideration to any
3
submissions that were received from members of the
4
public within that period; and
5
(iii) the body or association published on its website any
6
submissions that were received from members of the
7
public within that period; and
8
(g) the ACMA is satisfied that the ACCC has been consulted
9
about the development of the draft variation; and
10
(h) except in a case where:
11
(i) the code (as proposed to be varied) applies to
12
participants in a section of the telemarketing industry
13
and deals with one or more matters relating to the
14
telemarketing activities of those participants; or
15
(ii) the code (as proposed to be varied) applies to
16
participants in a section of the fax marketing industry
17
and deals with one or more matters relating to the fax
18
marketing activities of those participants;
19
the ACMA is satisfied that the Telecommunications Industry
20
Ombudsman has been consulted about the development of
21
the draft variation; and
22
(i) the ACMA is satisfied that at least one body or association
23
that represents the interests of consumers has been consulted
24
about the development of the draft variation; and
25
(j) in a case where the draft variation deals with a matter set out
26
in paragraph 113(3)(f)--the ACMA is satisfied that the
27
Information Commissioner has been consulted by the body or
28
association about the development of the draft variation
29
before the body or association gave the copy of the draft
30
variation to the ACMA; and
31
(k) the ACMA has consulted the Information Commissioner
32
about the draft variation and consequently believes that he or
33
she is satisfied with the draft variation, if the draft variation
34
deals directly or indirectly with a matter dealt with by:
35
(i) the National Privacy Principles (as defined in the
36
Privacy Act 1988); or
37
(ii) other provisions of that Act that relate to those
38
Principles; or
39
Amendments Schedule 1
General amendments Part 1
Telecommunications Legislation Amendment (Consumer Protection) Bill 2013 No. , 2013
7
(iii) an approved privacy code (as defined in that Act) that
1
binds a participant in that section of the
2
telecommunications industry, the e-marketing industry,
3
the telemarketing industry or the fax marketing
4
industry; or
5
(iv) provisions of that Act that relate to the approved privacy
6
code.
7
Approval of variation
8
(2) The ACMA must, by written notice given to the body or
9
association, approve the draft variation.
10
(3) If the ACMA approves the draft variation, the code is varied
11
accordingly.
12
Period for making submissions
13
(4) A period specified under subparagraph (1)(e)(i) or (1)(f)(i) must
14
run for at least 30 days.
15
13 Subsection 120(1)
16
Omit "(1)".
17
14 Subsection 120(1)
18
Omit "are to", substitute "may".
19
15 Subsection 120(2)
20
Repeal the subsection.
21
16 Paragraph 136(1)(a)
22
After "this Part", insert ", as those codes are in force from time to time".
23
17 Division 6A of Part 6 (heading)
24
After "development", insert "or variation".
25
18 Section 136A (heading)
26
After "development", insert "or variation".
27
Schedule 1 Amendments
Part 1 General amendments
8 Telecommunications Legislation Amendment (Consumer Protection) Bill 2013 No.
, 2013
19 Subsection 136A(1)
1
After "develop", insert "or vary".
2
20 Subsection 136A(1)
3
After "developing the code", insert "or varying the code, as the case
4
may be".
5
21 Subparagraph 136A(2)(c)(i)
6
After "developing the code", insert "or varying the code, as the case
7
may be".
8
22 Section 136B (heading)
9
After "development", insert "or variation".
10
23 Before subsection 136B(1)
11
Insert:
12
Development of code
13
24 Subsection 136B(1)
14
After "declaration in relation to", insert "the development of".
15
25 After subsection 136B(2)
16
Insert:
17
Variation of code
18
(2A) If a body or association makes an application under
19
subsection 136A(1) for a declaration in relation to the variation of
20
a code, the ACMA must make the declaration if it is satisfied that:
21
(a) the body or association represents the section of the
22
telecommunications industry referred to in
23
paragraph 136A(1)(a); and
24
(b) the code is registered under this Part; and
25
(c) the code deals wholly or mainly with one or more matters
26
relating to the relationship between carriage service providers
27
and their retail customers; and
28
(d) the process for varying the code, as outlined in the
29
application, is likely to ensure that the interests of those retail
30
Amendments Schedule 1
General amendments Part 1
Telecommunications Legislation Amendment (Consumer Protection) Bill 2013 No. , 2013
9
customers are adequately represented in relation to the
1
variation of the code; and
2
(e) the total of the refundable costs likely to be incurred by the
3
body or association in varying the code, as set out in the
4
estimate that accompanied the application, is reasonable.
5
(2B) If the ACMA is not satisfied as to the matters set out in
6
subsection (2A), the ACMA must, by written notice given to the
7
applicant, refuse to make the declaration.
8
General provisions
9
26 Section 136C (heading)
10
After "developing", insert "or varying".
11
27 Subsection 136C(1) (heading)
12
Repeal the heading, substitute:
13
Reimbursement of costs--development of code
14
28 After subsection 136C(3)
15
Insert:
16
Reimbursement of costs--variation of code
17
(3A) If:
18
(a) a section 136B declaration was made in relation to the
19
variation of an industry code by a body or association; and
20
(b) when the section 136B declaration was in force, the body or
21
association gave a copy of the variation to the ACMA under
22
section 119A; and
23
(c) the ACMA is satisfied that the code deals wholly or mainly
24
with one or more matters relating to the relationship between
25
carriage service providers and their retail customers; and
26
(d) the ACMA is satisfied that the process for the variation of the
27
code ensured that the interests of those retail customers were
28
adequately represented in relation to the variation of the
29
code; and
30
(e) the copy of the variation was accompanied by:
31
Schedule 1 Amendments
Part 1 General amendments
10 Telecommunications Legislation Amendment (Consumer Protection) Bill 2013 No.
, 2013
(i) a written statement itemising one or more costs incurred
1
by the body or association in varying the code; and
2
(ii) a written claim for reimbursement of those costs; and
3
(iii) a written declaration by an approved auditor that he or
4
she is of the opinion that the subparagraph (i) statement
5
complies with the approved auditing requirements; and
6
(iv) a written statement describing the process for the
7
variation of the code; and
8
(f) the ACMA is satisfied that each of the costs itemised in the
9
subparagraph (e)(i) statement:
10
(i) is a refundable cost incurred by the body or association
11
in varying the code; and
12
(ii) was incurred when the section 136B declaration was in
13
force;
14
the ACMA must, by written notice given to the body or
15
association, determine that the body or association is entitled to be
16
paid a specified amount.
17
Note:
For refundable cost, see section 136E.
18
(3B) The specified amount must be equal to whichever is the lesser of
19
the following:
20
(a) the total of the costs itemised in the subparagraph (3A)(e)(i)
21
statement;
22
(b) the estimate that accompanied the application for the
23
section 136B declaration.
24
(3C) The ACMA, on behalf of the Commonwealth, must pay the
25
specified amount to the body or association within 30 days after
26
the day on which the body or association was notified under
27
subsection (3A) of its entitlement to be paid that amount.
28
Appropriation
29
29 Subsection 136E(1)
30
After "developing" (first occurring), insert "or varying".
31
30 Subsection 136E(1)
32
After "developing the code", insert "or varying the code, as the case
33
may be,".
34
Amendments Schedule 1
Other amendments Part 2
Telecommunications Legislation Amendment (Consumer Protection) Bill 2013 No. , 2013
11
Part 2
--
Other amendments
1
Telecommunications (Consumer Protection and Service
2
Standards) Act 1999
3
31 At the end of section 128
4
Add:
5
(8) The scheme must comply with any standards determined under
6
subsection (9).
7
(9) The Minister may, by legislative instrument, determine standards
8
for the purposes of subsection (8).
9
(10) In making a determination under subsection (9), the Minister must
10
have regard to the following matters:
11
(a) accessibility;
12
(b) independence;
13
(c) fairness;
14
(d) accountability;
15
(e) efficiency;
16
(f) effectiveness;
17
(g) such other matters (if any) as the Minister considers relevant.
18
(11) Before making a determination under subsection (9), the Minister
19
must consult:
20
(a) the Telecommunications Industry Ombudsman; and
21
(b) the ACMA.
22
32 At the end of Part 6
23
Add:
24
133A Reviews of the Telecommunications Industry Ombudsman
25
scheme
26
(1) The Telecommunications Industry Ombudsman must cause to be
27
conducted reviews of the operation of the Telecommunications
28
Industry Ombudsman scheme.
29
Schedule 1 Amendments
Part 2 Other amendments
12 Telecommunications Legislation Amendment (Consumer Protection) Bill 2013 No.
, 2013
Timing of reviews
1
(2) The first review must be completed within 3 years after the
2
commencement of this section.
3
(3) Each subsequent review must be completed within 5 years after the
4
completion of the previous review.
5
Independent reviews
6
(4) A review must be conducted by a person or body who is
7
independent of:
8
(a) the Telecommunications Industry Ombudsman; and
9
(b) the telecommunications industry.
10
Consultation
11
(5) A review must make provision for:
12
(a) public consultation; and
13
(b) consultation with:
14
(i) the Telecommunications Industry Ombudsman; and
15
(ii) the ACMA.
16
Report of review
17
(6) The person or body conducting a review must:
18
(a) prepare a report of the review; and
19
(b) give the report to the Telecommunications Industry
20
Ombudsman.
21
(7) The Telecommunications Industry Ombudsman must:
22
(a) give a copy of the report to the Minister; and
23
(b) publish the report on the Telecommunications Industry
24
Ombudsman's website.
25
Response to recommendations in report
26
(8) If a report of a review sets out one or more recommendations to the
27
Telecommunications Industry Ombudsman, the
28
Telecommunications Industry Ombudsman must, within 6 months
29
after receiving the report:
30
Amendments Schedule 1
Other amendments Part 2
Telecommunications Legislation Amendment (Consumer Protection) Bill 2013 No. , 2013
13
(a) prepare a statement setting out the Telecommunications
1
Industry Ombudsman's response to each of the
2
recommendations; and
3
(b) publish a copy of the statement on the Telecommunications
4
Industry Ombudsman's website; and
5
(c) give a copy of the statement to the Minister.
6
Completion of review
7
(9) For the purposes of this section, a review is completed when the
8
report of the review is given to the Telecommunications Industry
9
Ombudsman.
10
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