Bills Digest no. 161 2005–06
Do Not Call Register (Consequential Amendments) Bill 2006
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer & Copyright Details
Passage History
Do Not Call Register (Consequential
Amendments) Bill 2006
Date introduced: 25 May 2006
House: House of Representatives
Portfolio: Communications, Information Technology
and the Arts
Commencement: The introductory
provisions and Part 1 of Schedule 1 commence on Royal Assent. Part 2 of
Schedule 1 commences at the same time as Part 2 of the proposed Do
Not Call Register Act 2006 (that is 12 months after Royal Assent unless
commenced earlier by proclamation).
The purpose of the Bill is to:
- enable the development of relevant industry codes and standards relating
to telemarketing, and
- make various consequential amendments to the Telecommunications
Act 1997, the Australian Communications and Media Authority Act
2005 and the Telecommunications (Carrier Licence Charges) Act
1997 to enable investigation, compliance and enforcement action
to be undertaken by the Australian Communications and Media Authority
(ACMA) to support the operation of the proposed Do Not Call Register
Act 2006.
A detailed Background is provided in the accompanying Bills Digest
on the Do Not Call Register Bill 2006.
The amendments made by Part 1, below, of Schedule 1 commence on Royal
Assent.
Section 3 of the Telecommunications Act 1997 (TA) specifies that
one of the main objects of the TA is to provide a regulatory framework
that promotes the long–term interests of end–users of carriage services
or services provided by means of carriage services. A 'carriage service'
means a service for carrying communications.
Item 1 amends subsection 3(2) to set out an additional object
which is to promote responsible practices in relation to the making of
telemarketing calls.
Item 2 amends section 5 to add a reference to the telemarketing
industry in the simplified outline of the TA.
Items 3 to 6 insert definitions in the interpretation section
of the TA, including a definition of the telemarketing industry and a
telemarketing call. A telemarketing call incorporates the meaning given
to it in the proposed Do Not Call Register Act 2006 and is broadened
to include calls for which one of the purposes is:
- to conduct opinion polling, or
- to carry out standard questionnaire-based research (as defined in
clause 4).
Section 106 of the TA is the simplified outline for Part 6—Industry Codes
and Industry Standards for the telecommunications industry. Item 7
adds references in this section to the telemarketing industry.
Item 8 inserts new section 109B in Part 6 of the TA to
specify criteria that identify what a telemarketing activity is for the
purposes of industry codes and standards that are developed by bodies
and associations that represent sections of the telemarketing industry.
It is drafted to maintain consistency with technical definitions in the
Do Not Call Register Bill 2006.
Item 9 inserts a new section 110B in the TA to clarify
that there are sections of the telemarketing industry that may develop
relevant codes and standards. Likewise, item 10 inserts a new
section 111AA in the TA to define participants in a section of the
telemarketing industry.
Division 3 of Part 6 of the TA deals with matters such as the statement
of regulatory policy applicable to the general principles relating to
industry codes and standards. The administration of the policy rests
with the ACMA. The ACMA is established under the Australian Communications
Media Authority Act 2005. The ACMA is the successor body to the amalgamation
of the Australian Communications Authority and the Australian Broadcasting
Authority. The ACMA is empowered to give directions to carriers and telecommunications
service providers. The ACMA regulates the telecommunications industry.
Item 11 inserts a new subsection 112(1B) in the TA to expressly
state that it is Parliament's intention that the ACMA's regulation extends
to the examination of industry codes prepared by sections of the telemarketing
industry. Item 14 inserts new subsection 112(3C) in the
TA to provide criteria that the ACMA must take into account when determining
whether public interest considerations are being addressed in a way that
does not impose undue financial administrative burdens on participants
in the telemarketing industry. The criteria include factors such as the
number of persons likely to benefit from the code or standard, the extent
to which those persons are householders or small business operators, and
the legitimate business interests of participants in sections of the telemarketing
industry.
Subsection 113(3) gives examples of the matters that industry codes and
industry standards may deal with. Item 17 inserts new paragraphs
113(3)(w) to 113(3)(y) in the TA to give examples of matters relevant
to the telemarketing industry that may be dealt with by industry codes
and standards. Basically, the codes are expected to deal with agreed
procedures and actions that will be taken by the industry to regulate
telemarketing calls.
Items 12, 13, 15, 16, 18, 19, 20, 21 to 35, and 37 to
38 are minor reference amendments.
Item 36 inserts new section 125A that requires the ACMA
to determine an industry standard for the telemarketing industry. The
industry standard, which will be a legislative instrument must be in place
at the commencement of Part 2 of the proposed Do Not Call Register
Act 2006. It must deal with the following matters:
- the time and/or days during which telemarketing calls may be made
- the specific information about the telemarketer that must be included
in a call
- a requirement that telemarketers enable calling line identification
when making calls
- a requirement that participants terminate telemarketing calls in
specific circumstances.
These industry standards will apply to all persons and organisations
making telemarketing calls, including those exempt under the proposed
Do Not Call Register Act 2006.
Before determining or varying the industry standard the ACMA must consult
with:
- any relevant industry body or association (new subsection 125A(3))
and
- the states and territories (item 41).
The Explanatory Memorandum also points out that under other provisions
in the TA the ACMA has existing obligations to consult with the general
public, the ACCC, the Privacy Commissioner and at least one consumer body
before determining conduct standards.(1)
The amendments made by Part 2, below, of Schedule 1 commence at the same
time as Part 2 of the Do Not Call Register Act 2006 commences.
As noted above, the ACMA is to be the regulator of the telemarketing
industry. The ACMA is established under the ACMA Act. Items 42
inserts a specific reference in the ACMA Act to the proposed Do Not
Call Register Act 2006.
Items 44, 50 to 52, 54 to 57, and 59 to 71
make minor consequential amendments to the TA to insert references to
the proposed Do Not Call Register Act 2006 for the purposes of
inclusion in existing provisions that deal with matters such as inquiries,
investigations and enforcement by the ACMA. In passing, it should also
be noted that apart from hearings conducted by the ACMA, the Minister
may give a direction to the Australian Competition and Consumer Commission
(ACCC) to hold an inquiry into specified matters in the telecommunications
industry (see Part 25—Public Inquiries of the TA). Item 51 inserts
a reference to the proposed Do Not Call Register Act 2006 as a
matter that may be the subject of a hearing by the ACCC.
Item 49 inserts new section 139. It prohibits a person
or organisation entering into a telemarketing contract, arrangement or
understanding unless the contract, arrangement or understanding contains
an express obligation requiring the other party to comply with Part 6
of the TA in relation to telemarketing activities. This clause corresponds
to clause 12 in the Do Not Call Register Bill. It is a civil penalty provision
and the penalty regime for clause 12 will apply (item 60).
The Explanatory Memorandum states that this provision is likely to assist
where a business operating in Australia
contracts with an overseas telemarketer to provide telemarketing services
to Australian numbers. ‘[T]his provision puts a further obligation on
persons outsourcing their telemarketing calls to assist in ensuring that
such persons will comply with Part 6 of the Telecommunications Act by
making it a contractual requirement.’(2)
Item 53 inserts new subsection 509(5) into the TA. It places
an obligation on the ACMA to investigate and provide assistance regarding
caller identification in cases where a person makes a complaint about
an alleged breach of a telemarketing code or standard, or about a breach
of the proposed Do Not Call Register Act. The Explanatory Memorandum states
that this would enable a person to make a complaint about receiving silent
calls.(3)
Item 58 inserts new section 515A. It provides that the
ACMA may transfer complaints regarding a breach of a telemarketing code,
industry standard or the Do Not Call Register Act to the Privacy Commissioner.
The ACMA must transfer the complaint where satisfied that the complaint
would be more conveniently and effectively dealt with by the Privacy Commissioner
under section 36 of the Privacy Act 1988.
The Telecommunications (Carrier Licence Charges) Act imposes charges
in relation to carrier licences under the TA. The amount of the charge
imposed on a carrier licence is determined by the ACMA according to a
range of factors. One of those factors is the amount of the ACMA’s costs
for its telecommunications functions and powers. Items 72 and 73
make amendments to the definition of the ACMA’s telecommunications functions
and powers in subsection 15(4). The effect is to ensure that carriers
do not fund ACMA’s telecommunications powers and functions so far as they
relate to telemarketing.
Endnotes
- Explanatory Memorandum, p. 20.
- ibid., p. 25.
- ibid., p. 27.
Mary Anne Neilsen
19 June 2006
Bills Digest Service
Information and Research Services
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using information available at the time of production. The views expressed
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ISSN 1328-8091
© Commonwealth of Australia 2006
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Published by the Parliamentary Library, 2006.
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