Commonwealth Numbered Regulations - Explanatory Statements
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DO NOT CALL REGISTER REGULATIONS 2017 (F2017L00237)
Explanatory Statement
Do Not Call Register Act 2006
Do Not Call Register Regulations 2017
Issued by the Authority of the Minister for Communications
Purpose
The Do Not Call Register Regulations 2017 (Regulations) are made by the Governor-General under section 46 of the Do Not Call Register Act 2006 (the Act).
The purpose of the Regulations is to repeal and remake the current Do Not Call Register Regulations 2006 in substance, noting that changes have been made to the form of the Regulations to reflect current drafting practice and ensure the regulations continue to be fit for purpose.
The Regulations are a legislative instrument for the purposes of the Legislation Act 2003.
Background
The Act established the Do Not Call Register (the Register), which enables individuals who have an Australian telephone number to register their number in order to opt out of receiving unsolicited telemarketing calls and marketing faxes (subject to certain exceptions). The Act prohibits the making of telemarketing calls and sending of marketing faxes to numbers on the Register without the consent of the relevant account-holder of the number, or their nominee.
The Act allows for regulations to specify certain types of calls that are not considered to be telemarketing calls, and provide for individuals to be considered to be nominees of the relevant account-holder of an Australian number in particular circumstances, for the purposes of subsections 5(7) and 39(4) of the Act respectively.
The Regulations are required to ensure that certain legitimate customer service and retail calls are able to be made to numbers on the Register, as outlined below.
The Regulations provide that calls that are made for a particular primary purpose relating to certain expected customer services, such as appointment reminders and fault rectification, are not considered to be telemarketing calls. This ensures that such calls can continue to legally be made to any person (even where their number is on the Register) and are not subject to the industry standard determined by the Australian Communications and Media Authority pursuant to section 125A of the Telecommunications Act 1997, which regulates, among other things, the times at which telemarketing calls can be made.
The Regulations also provide that, where an individual gives an Australian number of which they are not the relevant account-holder to a person or organisation for the purpose of being contacted on that number, the individual is a deemed nominee of the relevant account-holder for the purposes of giving consent to being contacted on that number. This ensures that calls may continue to be made to an Australian number that is on the Register where, for example, a member of a household has consented to being called on that number.
Regulation Impact Statement
The Office of Best Practice Regulation has confirmed that the preparation of a Regulation Impact Statement is not necessary, as the amendments have a nil or low impact on business or the economy or individuals.
Statement of compatibility with Human Rights
This statement of compatibility is prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
These Regulations are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Regulations
The Do Not Call Register Act 2006 (the Act) allows individuals to have their number included on the Do Not Call Register (the Register). The Act prohibits the making of telemarketing calls and sending of marketing faxes to numbers on the Register without the consent of the relevant account-holder of the number, or their nominee.
The Act allows for regulations to specify types of calls that are not considered to be telemarketing calls, and provide for individuals to be considered to be nominees of the relevant account-holder of a number in particular circumstances, for the purposes of subsections 5(7) and 39(4) of the Act respectively.
The Do Not Call Register Regulations 2017 (the Regulations) provide that calls that are made for a particular primary purpose relating to certain expected customer services, such as appointment reminders and fault rectification, are not considered to be telemarketing calls. This ensures that such calls can continue to legally be made to any person (even where their number is on the Register) and are not subject to the industry standard determined by the Australian Communications and Media Authority pursuant to section 125A of the Telecommunications Act 1997, which regulates, among other things, the times at which telemarketing calls can be made.
The proposed Regulations also provide that, where an individual gives an Australian number of which they are not the relevant account-holder to a person or organisation for the purpose of being contacted on that number, the individual is a deemed nominee of the relevant account-holder for the purposes of giving consent to being contacted on that number. This ensures that calls may continue to be made to an Australian number that is on the Register where, for example, a member of a household who is not the relevant account-holder has consented to being called on that number.
Human rights implications
The Regulations do not engage any of the applicable rights or freedoms.
Conclusion
The Regulations are compatible with human rights as they does not raise any human rights issues.
Consultation
During the review of the Regulations consultation was undertaken with key stakeholders, the Australian Communications and Media Authority (ACMA) which is responsible for administering the Register, the Association for Data-driven Marketing and Advertising (ADMA) which represents the interests of the telemarketing sector, and the Australian Communications Consumer Action Network (ACCAN) which represents the interests of consumers, to determine whether the Regulations remain fit-for-purpose.
Notes on Sections
Section 1 - Name of Regulations
This section provides that the Regulations are the Do Not Call Register Regulations 2017.
Section 2 - Commencement
This Section provides for the Regulations to commence on the day after they are registered on the Federal Register of Legislation.
Section 3 - Authority
This section provides that the Regulations are made under the Do Not Call Register Act 2006.
Section 4 - Schedules
This section provides that each instrument that is specified in the Schedule to the instrument is amended or repealed as set out in the Schedule, and any other item in a Schedule to the instrument has effect according to its terms.
Section 5 - Definitions
This section notes that certain terms used in the Regulations are defined in the Act. These terms have the same meaning in the Regulations as under the Act, pursuant to section 13 of the Legislation Act 2003.
This section also provides that, in the Regulations, 'Act' means the Do Not Call Register Act 2006 (the Act).
Section 6 - Calls that are not telemarketing calls
Section 5 of the Act sets out when a call is a 'telemarketing call' for the purposes of the Act. A voice call to an Australian number is a telemarketing call when, having regard to the matters listed in paragraphs 5(1)(a)-(d), it would be concluded that the purpose, or one of the purposes, of the call is one of the purposes listed in paragraphs 5(1)(e)-(o). These include commercial purposes, such as offering to supply, advertising or promoting goods or services. Subsection 5(7) of the Act allows the regulations to provide that specified kinds of voice calls are not 'telemarketing calls' for the purposes of the Act.
The Act imposes a prohibition on the making of telemarketing calls to an Australian number on the Register without prior consent. Telemarketing calls are also subject to industry standards prescribed by the Australian Communications and Media Authority (ACMA) under section 125A of the Telecommunications Act 1997, including permitted calling hours and information which must be provided about the caller.
However, it is impractical or undesirable for these restrictions to apply in relation to certain types of calls. For example, calls to inform a customer that a product has been unexpectedly recalled may need to be made to numbers of the Register without prior consent, and fault rectification calls may need to be made outside of permitted calling hours.
Section 6 of these Regulations ensures that calls which primarily have a 'non-commercial' purpose, such as informing a customer of a product recall, do not come within the definition of a telemarketing call (and are therefore not subject to the above-described restrictions), even if during the course of the call incidental discussions are held about, for example, the supply of alternative products to replace a recalled product.
Subsection 6(1) of the Regulations provides that the kinds of voice calls set out in section 6 are not telemarketing calls. The note to subsection 6(1) clarifies that the section sets out circumstances in which the primary purpose of the voice call means that the call is not a telemarketing call, even if another purpose of the call is a purpose referred to in paragraphs 5(1)(e)-(o) of the Act.
Subsections 6(2) to (7) set out the following types of call that are not telemarketing calls:
a. calls for the primary purpose of:
(i) informing a person of the recall of goods they have bought or obtained (product recall calls);
(ii) informing a person of, attempting to rectify, or informing a person of the rectification of, faults with goods or services (fault rectification calls);
(iii) rescheduling a customer's appointment (appointment rescheduling calls);
(iv) reminding a person of an existing appointment (appointment reminder calls);
b. calls of which the primary purpose relates to:
(i) payments for goods or services ordered by, requested by, or supplied to a customer (calls relating to payment);
(ii) a current (i.e. not withdrawn) order or request by a customer or potential customer for goods or services, or request or inquiry by a potential customer for information about goods or services, where the call is made in response to that order, request or inquiry within a reasonable time after the order, request or inquiry (solicited calls).
In some of these cases, it may be possible for the caller to establish that they have consent to make the call to a number on the Register in any case. However, as this is a question of circumstance, this section is intended to remove all doubt.
The section also includes a number of examples of the different types of calls that are covered.
Subsection 6(8) specifies, for the avoidance of doubt, that the primary purpose of a voice call for the purposes of section 6 is the primary purpose for which the call is made, even if that purpose cannot be fulfilled because the call is not answered by the intended recipient.
This ensures that, for example, if a caller makes a call to a person for the primary purpose of reminding them of an appointment, but is not able to deliver that reminder to the intended recipient and instead leaves a message on an answering machine or with another person who answers the phone, this does not affect the primary purpose for which the call was made for the purposes of subsections 6(2)-(7).
Section 7 - Deemed nominees
Subsections 11(1) and 12B(1) of the Act prohibit a person from making or sending, or causing to be made or sent, a telemarketing call or marketing fax respectively (other than a designated telemarketing call or designated marketing fax) to an Australian number that is registered on the Register.
Subsections 11(2)(b) and 12(2)(b) of the Act provide that subsections 11(1) and 12B(2) do not apply where a 'nominee' of the relevant account-holder of the number has consented to the making of the call or sending of the fax.
A nominee may be nominated in writing by the relevant account-holder under section 39 of the Act. Section 39(4) also allows the regulations to provide that, for the purposes of the application of the Act to an Australian number, an individual is taken to be a nominee of the relevant account-holder (a deemed nominee) in the circumstances specified in the regulations.
Section 7 of these Regulations specifies that individuals are deemed nominees in certain circumstances for the purposes of consenting to receive telemarketing calls or marketing faxes, to enable normal retailing inquiries to be dealt with.
Subsection 7(1) provides that section 7 applies if an individual who is not the relevant account-holder of a particular Australian number gives that number to a person or organisation for the purpose of allowing the person or organisation to contact the individual. The section also applies where the person or organisation is given the number by another person on behalf of the individual.
Subsection 7(2) provides that an individual specified in subsection 7(1) is taken to be a nominee of the relevant account-holder for the purpose of giving consent to the person or organisation calling the Australian number to contact the individual, or arranging for another person to call or send a fax to the Australian number to contact the individual on the person or organisation's behalf.
This section ensures that anyone can consent to receiving calls that may be considered telemarketing calls on a number they provide for that purpose, even where they are not the account-holder for that number. This recognises that in many instances a number of people may share a single telephone (and number) but not be listed as account-holders, or be persons nominated in writing by the account-holder, for that number; for example, members of a family household or a student share-house.
Subsection 7(1) also ensures that an individual is a deemed nominee where another person provides a number on that individual's behalf to allow the individual to be contacted. A scenario where this might occur is outlined in Example 3 to this section.
This section also includes other examples of when an individual will be a deemed nominee.
The requirement in subsection 7(1) that a number is provided for the purpose of the individual themselves being contacted prevents abuse of this section. This ensures that a person will not be a deemed nominee where they simply provide a list of numbers to, for example, a telemarketing agency to allow the telemarketing agency to market to those numbers, with no intention of themselves being contacted at those numbers.
Subsection 7(2) ensures that an individual will still be a deemed nominee for the purposes of consenting to, for example, a contractor of a business they provide their number to contacting them on behalf of the business, as well as the business itself.
For clarity, this section does not determine whether or not a person may make a telemarketing call or send a marketing fax to an Australian number on the Register, it merely provides for a class of persons whose consent, if given, would allow for the call to be made or the fax to be sent. Before making a telemarketing call or sending a marketing fax to a number on the Register, the person making the call or sending the fax must establish that they have the consent of the relevant account-holder or their nominee (including a deemed nominee).
The section also does not allow a person to be a deemed nominee for the purposes of applying for a number to be registered on the Register under section 15 of the Act, or engaging in other dealings with regard to the Register (e.g. requesting removal of a number from the Register or amendment of the Register). This is because an individual is only a deemed nominee by virtue of this section for the purposes of giving consent to being contacted by a person or organisation (or their representative) on the number they have provided, and not for the purposes of other dealings regarding the Register. This is outlined in the note to this section.
Schedule 1 - Repeals
Do Not Call Register Regulations 2006
Item [1] - The whole of the Regulations
Item 1 of Schedule 1 to the Regulations repeals the whole of the current Regulations on the date the replacement Regulations commence.