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DO NOT CALL REGISTER REGULATIONS 2006 (SLI NO 335 OF 2006)
EXPLANATORY STATEMENT
Select Legislative Instrument 2006 No. 335
Issued by the Authority of the Minister for Communications, Information Technology and the Arts
Do Not Call Register Regulations 2006
Section 46 of the Do Not Call Register Act 2006 (the Act) provides that the
Governor-General may make regulations prescribing matters required or permitted to be prescribed by the Act, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The Act provides for the establishment of a Do Not Call Register (the Register) to enable individuals who have an Australian telephone number to register their number and so opt out of receiving unsolicited telemarketing calls (subject to certain exceptions). Once a number is registered, telemarketing calls can only be made where the telephone account-holder or their nominee has consented to the call (subject to certain exceptions). In addition, the Australian Communications and Media Authority (ACMA) is required to make an industry standard which will regulate certain matters, including permitted calling hours, for all telemarketing calls (section 125A of the Telecommunications Act 1997).
The purpose of the Regulations is to address concerns raised by industry groups about the proposed operation of the Register and to remove certain types of calls from the Do Not Call scheme.
Concern has been raised that the restriction on who can consent to receive telemarketing calls will not enable normal retailing enquiries to be dealt with. For example, where a number of people share a house (and a telephone number), not all the household members will necessarily be listed as account-holders. If the account-holder does not nominate in writing all household members for the purposes of the Act, then other household members will not be able to receive telemarketing calls, where the number has been listed on the Register, even if they have requested the call.
Subsection 39(4) of the Act provides that the regulations may specify when an individual is a nominee of the relevant telephone account-holder. The purpose of the Regulations is to deem persons who have provided a telephone number to an individual or organisation in certain circumstances to be a nominee for the purposes of providing consent. This is designed to enable normal retailing enquiries to be dealt with, notwithstanding that a number may be listed on the Register.
In addition, the Regulations remove certain ‘customer service’ calls from the definition of a telemarketing call and consequently from the scope of the Do Not Call scheme. Where a call has been requested by an individual or contains an element of expected customer service, such as fault rectification, it is not intended that such calls be regulated by the rules relating to telemarketing calls. Subsection 5(7) of the Act provides that the regulations may provide that a specified kind of voice call is not a telemarketing call for the purposes of the Act. The accompanying Regulations provide that certain customer service-type calls, fault rectification and product recall calls, appointment rescheduling and reminder calls, payment related calls, and solicited calls, are not telemarketing calls. This has the effect of ensuring that such calls are outside the Do Not Call scheme, that is they can be made to any person and are not subject to the contact standards, such as permitted calling hours, which regulate telemarketing calls.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003 (LIA) (see paragraph 6(a) of the LIA). The Australian Communications and Media Authority, the Australian Direct Marketing Association and the Australian Bankers Association were consulted about the accompanying Regulations and were broadly supportive of the Regulations.
Details of the accompanying Regulations are set out in the Attachment.
The Regulations relating to nominees commence on the same day as Part 2 of the Act (which sets out the rules relating to telemarketing calls) comes into effect (on a date to be proclaimed or 1 July 2007, whichever is the earlier). The remainder of the Regulations commenced on the day after they were registered on the Federal Register of Legislative Instruments.
ATTACHMENT
Details of the Do Not Call Register Regulations 2006
Regulation 1 – Name of Regulations
This regulation provides that the title of the Regulations is the Do Not Call Register Regulations 2006.
Regulation 2 – Commencement
This regulation sets out the date on which the Regulations commence.
Regulations 1 to 4 commence on the day after the Regulations are registered on the Federal Register of Legislative Instruments. Regulations 1 to 3 are introductory provisions and regulation 4 provides that certain types of calls are not telemarketing calls
Regulation 4 affects which calls are subject to the telemarketing industry standard to be made by the Australian Communications and Media Authority (ACMA) under section 125A of the Telecommunications Act 1997 (the Telecommunications Act). The power requiring ACMA to determine an industry standard commenced on 30 June 2006, the date of Royal Assent of the Do Not Call Register Act 2006 (Act) (item 2 of the table in section 2 of the Do Not Call Register (Consequential Amendments) Act 2006 (the Consequential Amendments Act)). Consequently regulation 4 takes effect on the day after the Regulations are registered on the Federal Register of Legislative Instruments so as to ensure that such calls are not covered by the industry standard once it is determined by ACMA.
The regulation relating to nominees (regulation 5) has the effect of taking various calls outside the prohibition on making unsolicited telemarketing calls set out in Part 2 of the DNCR Act. Consequently regulation 5 commences on the same day as Part 2 of the DNCR Act commences. Part 2 of the Act commences on a date to be proclaimed or 1 July 2007 (ie 12 months after Royal Assent), whichever is the earlier (see item 3 of the table in subsection 2(1)) of the Act).
Regulation 3 – Definitions
This regulation provides a definition for certain terms used in the regulations.
The term Act is defined to mean the Do Not Call Register Act 2006.
A note specifies that terms which are used in the regulations and are defined in the Act have the same definition as those in the Act, as provided for in section 13 of the LIA. For example, ‘goods’, ‘services’ and ‘supply’ are defined in section 4 of the Act. In these regulations those terms have the same meaning as in section 4 of the Act.
Regulation 4 – Calls that are not telemarketing calls
There is some concern that certain types of calls which have been requested by customers or which contain an element of expected customer service (eg fault rectification or product recall) would come within the definition of a telemarketing call in the Act and would consequently be subject to the rules relating to the making of telemarketing calls, including the requirement to comply with the industry standard relating to the conduct of telemarketing calls. It is not intended that certain calls, such as solicited calls, would be subject to rules relating to telemarketing calls such as permitted calling hours. This regulation also ensures that consumers can receive information about related goods or services which an organisation offers if they so request as part of a customer service-type call or a call which they have requested.
Regulation 4 is designed to:
Regulation 4 specifies that certain kinds of voice calls are not telemarketing calls for the purposes of the Act. It removes solicited calls and customer service calls from the definition of a telemarketing call and consequently from the operation of the Do Not Call scheme.
The definition of a ‘telemarketing call’ is a central concept to the Do Not Call Register scheme. Part 2 of the Act sets out various rules which apply to the making of telemarketing calls. In general, unsolicited telemarketing calls must not be made to a number registered on the Do Not Call Register, subject to certain limited exceptions such as calls made by charities, religious organisations, government bodies, political parties and candidates and educational institutions (see subsections 11(1) and (2) of the Act).
Telemarketing calls are also subject to further regulation under the amendments made to the Telecommunications Act 1997 by the Consequential Amendments Act. ACMA is required to make an industry standard which will regulate certain aspects of telemarketing calls, including the time at which such calls can be made and the information which must be provided about the person making the call (see sections 109B and 125A of the Telecommunications Act).
Regulation 4 specifies that the following types of calls are not telemarketing calls, whether they are answered by the intended recipient or not:
Product recall calls – subregulation 4(2)
In most circumstances a call to advise a customer of a product recall would not come within the definition of a telemarketing call as it would not have a commercial-type purpose (as set out in paragraphs 5(1)(e) to (o) of the Act). However, if during the course of such a phone call an organisation took the opportunity to offer alternative products, then it is possible that the call would fall within the definition of a telemarketing call, as the sole purpose of the call would no longer be to advise a customer of a fault or product recall, and it would have as one of its purposes a commercial-type purpose, which would bring it within the definition of a telemarketing call.
Subregulation 4(2) excludes calls which have the primary purpose of advising a customer that a product has been recalled by its manufacturer (product recalls) from the definition of a telemarketing call, notwithstanding that the manufacturer may then offer to supply a customer with an alternative product.
This ensures that if a manufacturer calls a customer who has purchased a product which has been subsequently recalled and during the course of the conversation offers an alternative product, such a call is not subject to the standards regulating the making of telemarketing calls or the rules relating to the making of telemarketing calls. It is important that calling hour restrictions do not apply in relation to such calls, as there may be instances where a call needs to be made outside the permitted calling hours for telemarketing calls specified in the industry standard.
Fault rectification calls – subregulation 4(3)
Subregulation 4(3) excludes from the definition of a telemarketing call, calls which have a primary purpose which relates to a fault with goods or services. It would cover calls made for the purpose of informing a customer of a particular fault, attempting to rectify the fault, or advising that a fault has been rectified.
This subregulation ensures that such calls can be made to customers and will not be subject to the rules relating to telemarketing calls under the Act and which will be set out in the telemarketing industry standard to be made by ACMA, which will determine matters such as permitted calling hours.
Without this subregulation it is possible that such calls would be subject to regulated calling hours. It may be important that such calls are made outside of normal business hours and they should not be subject to the permitted calling hours set under the industry standard.
To avoid the possibility of abuse, a call of this type will only fall outside the definition of a telemarketing call if its primary purpose is to advise a customer of a fault rectification. This is intended to avoid a call being portrayed as a ‘fault rectification’ call and then being used as a lead in to sell other products during the course of the call. If the primary purpose of the call was indeed to offer alternative products rather than to rectify a fault then the call would come within the meaning of a telemarketing call and would be subject to the rules relating to telemarketing calls.
Appointment rescheduling calls – subregulation 4(4)
Subregulation 4(4) is intended to remove any doubt as to whether a call to advise a customer of a rescheduled appointment is a telemarketing call and to ensure that such calls are not subject to the restrictions on making unsolicited telemarketing calls, such as permitted calling hours.
It provides that calls which have a primary purpose of rescheduling a person’s appointment is not a telemarketing call. To fall within this exemption a person must have an existing appointment with an organisation and the primary purpose of the call must relate to rescheduling that appointment.
Without this subregulation it is possible that if a person has a medical appointment on a Sunday, and if the ACMA telemarketing industry standard provided that telemarketing calls could not be made on a Sunday, then a call on the Sunday to reschedule the appointment would be prohibited, notwithstanding that a customer would wish to receive the call.
Appointment reminder calls – subregulation 4(5)
Similar to subregulation 4(4), subregulation 4(5) is intended to remove any doubt as to whether a call to remind a customer of an existing appointment is a telemarketing call (for example, because during the course of the conversation the business discussed alternative services they offer) and to ensure that such calls are not subject to the restrictions on making unsolicited telemarketing calls, such a permitted calling hours.
Subregulation 4(5) provides that calls which have a primary purpose of reminding a person of an existing appointment is not a telemarketing call. To fall within this exemption a person must have an existing appointment with an organisation and the primary purpose of the call must relate to reminding that person of that appointment.
Without this subregulation it is possible that if a person has a medical appointment on a Sunday, if the ACMA telemarketing industry standard provided that telemarketing calls could not be made on a Sunday, then a call on the Sunday to remind the customer of the appointment would be prohibited, notwithstanding that a customer may wish to receive the call.
It is not intended that appointment reminder calls which relate to unsolicited follow up appointments should be excluded from the definition of a telemarketing call. While a call to remind a customer of an existing appointment is more readily characterised as an information-type call, a follow-up appointment call may more appropriately be characterised as having a commercial-type purpose as it may be seen as having a marketing-type purpose to ensure that a customer returns. For example, if a dentist calls a customer two years after an appointment to remind the customer that they have not had a dental check up for two years, or if a pest inspection company calls a customer to remind them that they have not had an annual pest inspection, such calls will not be appointment reminder calls which are excluded from the definition of a telemarketing call under subregulation 4(5). Such calls will be a telemarketing call and consequently will be subject to the telemarketing industry standards to be made by ACMA. However, it is noted that it is possible that such calls could be made to numbers on the Register. For example, in some instances it may be possible to infer from the customer’s conduct and the nature of the relationship with the business that the customer has consented to receive a call relating to follow-up appointments (in accordance with Schedule 2 of the Act). For example, if a customer has had an ongoing relationship with a dentist, if the dentist has consistently called the customer every two years following a dental appointment to remind them that it is two years since their last appointment, it would be reasonable to infer that the customer has consented to receiving follow-up appointment reminder calls. Whether or not a customer has consented to receive such calls will be a question of fact to be determined according to the particular factual circumstances.
Calls relating to payments – subregulation 4(6)
Subregulation 4(6) excludes from the definition of a telemarketing call, calls which have a primary purpose which relates to payment for goods or services.
In most circumstances a call which relates to payment for goods or services would not have a commercial type purpose (as set out in paragraphs 5(1)(e) to (o) of the Act) so as to come within the definition of a telemarketing call. However, it is possible that during the course of a call seeking payment for a particular good or service an organisation may suggest alternative goods or services which would better suit the customer’s payment abilities.
The types of calls which relate to payment for goods or services include calls which request payment of an outstanding account, a call to remind a customer that an account is due shortly, or a call to suggest alternative payment arrangements if it is evident that a customer is having difficulty making payments.
A call only comes within this exclusion if its primary purpose relates to payment for goods or services ordered by, requested or supplied to a customer. The primary purpose of the call depends on each particular factual circumstance.
For example, if a customer has a telephone account with a service provider and the customer is regularly late in paying bills, the service provider could ring the customer to discuss payment options and alternative plans available. This call would be excluded from the definition of a telemarketing call because the primary purpose of the call relates to payment for the existing service supplied to the customer. However, if a customer has a telephone account with a service provider and there is no evidence of payment difficulties, it is not intended that a call from the service provider to the customer to advise them of the alternative services available would fall within this exclusion. This is because the primary purpose of the call would not relate to the payment for the existing service being supplied to the customer. In this instance the primary purpose of the call would be to offer alternative services to the customer.
Another example of a call which would come within this exclusion is where a bank calls a customer to discuss a customer’s overdrawn account. If during the course of the conversation it is obvious that the customer is having difficulties making payments in relation to the account it is possible that the bank’s representative may discuss alternative services which the bank offers which may better suit the customer’s financial circumstances (for example accounts which have lower transaction fees).
This subregulation is intended to remove any doubt as to whether a call to advise a customer of payment related issues is a telemarketing call (for example, because during the course of the conversation alternative services were discussed which better suited the customer’s payment abilities) and ensures that such calls will not be covered by the requirements to be set out in the telemarketing industry standard to be made by ACMA, which will determine matters such as permitted calling hours.
Solicited calls – subregulation 4(7)
Subregulation 4(7) excludes certain solicited calls from the definition of a telemarketing call.
The intention is to ensure that calls which individuals have requested from an organisation regarding certain goods or services, or calls which an organisation makes in order to validate or verify information relating to a customer’s order, inquiry or request for goods or services, are not covered by the rules relating to telemarketing calls. While such calls could ordinarily already be made to numbers registered on the DNC Register (as they are solicited calls, an organisation would likely to have express or inferred consent as required by the Act to make the calls), the intention of this regulation is to ensure that solicited calls would not be subject to the telemarketing industry standard to be determined by ACMA, which will regulate conduct of telemarketing calls, such as permitted calling hours.
In some instances ‘solicited calls’ will not come within the meaning of a telemarketing call under section 5 of the Act because they are purely information calls which do not have a ‘commercial-type’ purpose (as set out in paragraphs 5(1)(e) to (o). However, for those solicited calls which have a ‘commercial-type’ purpose, this regulation will ensure that such calls are not covered by the rules relating to telemarketing calls.
For example, if an individual has requested that an organisation call them in relation to information about particular goods or services, such a call could come within the meaning of a telemarketing call, as it has a commercial-type purpose (as set out in paragraphs 5(1)(e) to (o) of the Act), notwithstanding that it is a solicited call. As with appointment reminder and payment reminder calls, such calls could be made to numbers on the Register (relying on the inferred consent provisions under the Act). However, it is not intended that such calls should be subject to the telemarketing industry standard. For example, if a hardware shop received a particular product which had been requested by a customer on a weekend and wished to advise their customer of this, it may be unable to do so if it fell outside the permitted calling hours for telemarketing calls set under the ACMA industry standard.
Some examples of solicited calls which could fall outside the meaning of a telemarketing call are:
Under subregulation 4(7) solicited calls will only fall outside the definition of a telemarketing call if the primary purpose of the call is in relation to the particular order, request or inquiry for information, goods or services. It is not intended to enable an organisation to rely on a request for information to make future calls to an individual that do not relate to that original request. Once the initial request, order or inquiry has been dealt with it is not intended that the organisation could rely on the initial order, request or inquiry to make future calls to the individual, unless further information, or goods or services had been requested by the individual.
A call will only fall outside the meaning of a telemarketing call if the primary purpose of the call relates specifically to the particular order, request or inquiry (see paragraph 4(7)(b)). For example, if a person contacts a travel agent about flights to Brisbane on a particular day it is not intended that the agent could to use the telephone number to call the individual about flights to a different destination or flights that occur during a different period. These would not be calls with a primary purpose relating to the individual’s original request.
A call to confirm or clarify details on an application form would be a call in response to an order or request by a customer or potential customer for goods or services. For example, if a person has filled in an online application for insurance and the insurer called the applicant to clarify some information provided on the form for the purposes of approving (or otherwise) the insurance application, such a call could be a solicited call. It is made in response to a potential customer’s request for services (ie a request for insurance).
Solicited calls can be calls made where there is an existing relationship ie where a customer has placed a specific order or request, or where there is no existing relationship ie calls made in response to an inquiry or request by a potential customer. For example, if a person calls a business to purchase specific goods but due to the high volume of calls being made to the organisation and the operator takes the customer’s contact details so that the organisation could call the consumer back, the call back to the customer would be a solicited call and fall outside the meaning of a telemarketing call so long as the primary purpose of the call related to the initial request.
Paragraph 4(7)(c) ensures that a call is no longer a solicited call if the person has withdrawn their inquiry order or request.
Paragraph 4(7)(d) provides that to come within this exclusion a call must be made within a reasonable time after the inquiry. For example, if a person rang a bank to enquire about the mortgage products the bank had available, it would not be reasonable for a bank to ring the individual twelve months following the inquiry to advise the person of new products the bank had to offer, unless the person had made a further request for information to the bank.
Calls not answered by the person to whom the call is made – subregulation 4(8)
This subregulation allows certain calls to be made, even in cases where the call is not answered by the intended recipient of the call.
This subregulation is intended to remove any doubt that where a person makes a call which is excluded from the meaning of a telemarketing call under subregulations 4(2) to (7) (ie a product recall call, a fault rectification call, an appointment reminder or a rescheduling call, a payment related call or a solicited call), whether or not such a call falls outside the meaning of telemarketing call, is not affected if someone other than the intended recipient of the call answers the call.
Subregulation 4(8) also provides that calls of a kind mentioned in subregulations 4(2) to (7) (ie a product recall call, a fault rectification call, an appointment rescheduling call, an appointment reminder call, a payment related call or a solicited call) that are answered by an answering service or a person other than the intended recipient and with whom the caller leaves a message, are excluded from the definition of a telemarketing call.
For example, if a doctor makes a call to remind a patient that they have a medical appointment and another person answers the phone, if the doctor leaves a message with that other person reminding the patient of the appointment, this call would not be a telemarketing call, notwithstanding that the doctor did not speak to the patient and remind them of the appointment. Subregulation 4(8) is intended to remove any argument that in this case the primary purpose of the call is not to remind a person of an existing appointment as the message is not directly relayed to that person, but is left with another person, or on an answering machine.
Regulation 5 – Deemed nominees
Regulation 5 is designed to broaden who is a nominee for the purposes of consenting to receiving telemarketing calls so as to enable normal retailing inquiries to be dealt with.
Under the Act, organisations can only make a telemarketing call to a phone number on the Register if the relevant telephone account-holder or their ‘nominee’ has consented to the call (see subsection 11(2) of the Act). These consent arrangements are designed to enable individuals whose numbers are registered to still exercise their right to choose to accept certain telemarketing calls.
Under section 39 of the Act a person is a nominee if the relevant telephone account-holder has nominated them in writing.
This regulation deems certain other individuals to be a nominee for the purposes of providing consent to receive a telemarketing call under the Act (under subsection 39(4) of the Act).
It is intended to enable persons or organisations to make telemarketing calls to all persons who have provided them with a telephone number for the purposes of being contacted, notwithstanding that the telephone number provided by the person may not be in their name (ie they are not the relevant telephone account-holder) or they have not been nominated by the relevant account-holder.
This regulation recognises that in many instances a number of people may share a house (and a telephone number) and not all household members will be listed as account-holders. To enable normal retailing enquiries to be dealt with it is intended to enable a business to rely on consent from persons who have provided a number, but who may not in fact be the account holder or written nominee.
Subregulation 5(1) provides that for the purposes of providing consent a person is deemed to be a nominee of the relevant telephone account holder if the person has provided the telephone number to a person or organisation for the purpose of being contacted by that person or organisation. This means that if a person gives a telephone number to a person or organisation for the purpose of themselves being contacted on the number, they are a deemed nominee.
A person will only be a nominee if they have provided a number on which it is intended that the organisation will contact them. The requirement that a number is provided for the purposes of contacting the individual who has provided the number is intended to ensure that a person who wishes to market their products to a group of individuals could not simply provide these individual’s numbers to a telemarketer and then be deemed to be a nominee of that group of individuals (by virtue of the fact that they have provided the numbers to a person or organisation ie the telemarketer).
The telephone number need not be a number at which the individual resides. For example, if a person is staying at a friend’s or relative’s house and provides that number to a retailer for the purposes of getting a retail call from the retailer, the customer will be a nominee for the purposes of that phone number. Therefore, if the person has given the requisite consent, a retailer could make a call to that person at that number.
This regulation is also intended to ensure that where an organisation has a database of existing customers made up of numbers provided by customers for the purpose of being contacted, these customers will be able to provide consent to receiving telemarketing calls from that organisation on the number provided. The customers will be deemed nominees under subregulation 5(1) as they have given a number to the organisation for the purpose of the organisation contacting them.
For example, if a person has provided a phone number to a bank on a loan application form, that person is a deemed nominee and capable of providing consent to the bank to call them on that number.
Subregulation 5(2) is intended to ensure that where a person has provided a telephone number to an organisation for the purpose of being contacted by that organisation, if the organisation arranges for another person or organisation to contact the individual on their behalf, the person will still be considered a nominee. For example, if a person has provided a telephone number to a bank and the bank has provided this number to an outsourced call centre who is acting on behalf of the bank to make their telemarketing calls, the person is still a deemed nominee.
Subregulation 5(3) ensures that if an organisation has been provided with a person’s number by someone acting on that person’s behalf, then the person would be deemed to be a nominee and could consent to receiving telemarketing calls from the organisation. For example, if a person has filled in an online application form for a bank loan for themselves and their spouse and had provided a contact telephone number, both that person and the spouse would be a deemed nominee.
This regulation does not determine whether or not a person can make a telemarketing call to a telephone number listed on the Do Not Call Register. In order to make a telemarketing call to a number on the Register a person must have the consent of the relevant account holder or their nominee. This requires an organisation to be satisfied that firstly a person is a nominee (or account-holder), and secondly that the person has consented (either expressly or by inference) to the call (see section 11 and Schedule 2 of the Act). Regulation 5 relates to step one, ie determining whether or not a person is a nominee. In order to make a telemarketing call the person would then need to establish step two, that is that the nominee (or account-holder) has consented to the call.
For example, if a person has entered a competition and has provided their number on the competition entry form for the purposes of being advised whether they have won a prize, the entrant would be a deemed nominee. This means that the entrant would have the ability to provide consent to receiving telemarketing calls from the organisation running the competition (or someone acting on their behalf) on the number they have provided. However, this would not necessarily enable the competition organiser to make a telemarketing call to the entrant if their number was registered on the Register. To do this the organisation would need to establish that the entrant had consented to receiving telemarketing calls (for example because they had ticked a box on the entry form which agreed to receiving future marketing calls from the organisation).
This regulation does not affect who can apply to enter a telephone number on the Register. A deemed nominee would not be able to apply to register the number of the relevant telephone account holder on the Register, as this can only be done by the relevant account holder or a person nominated in writing by the account-holder (see section 15 of the Act). Regulation 5 only specifies when an individual is a nominee of the relevant account-holder for the purpose of the consent provisions in the Act.