BILLS DIGEST NO. 17, 2012–13

11 September 2012

Do Not Knock Register Bill 2012

Paula Pyburne
Law and Bills Digest Section

Date introduced:  21 May 2012

House:  House of Representatives

Portfolio:  Private Member's Bill: Steve Georganas, MP

Commencement:  On the day after Royal Assent

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill's home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose

The purpose of the Do Not Knock Register Bill 2012 (the Bill) is to establish a scheme to minimise and regulate unsolicited marketing calls to residential and government addresses.

Background

Do Not Call Register

On 30 October 2005, the then Minister for Communications, Information Technology and the Arts, Helen Coonan, released a discussion paper canvassing options for a national, legislated Do Not Call Register.[1]

The accompanying media release stated:

Australian consumers are increasingly frustrated by interruptions from telemarketers, particularly unsolicited calls that come from call centres overseas.

But in formulating a way to cut down on unsolicited calls there are a number of important issues to consider including how bodies such as charities and legitimate market researchers can continue to operate.

The discussion paper I am releasing today is a vital step in formulating how a national, legislated Do Not Call register would work in Australia. A Do Not Call register would give consumers the right to ‘opt-out’ of telemarketing approaches at any time.

For instance, people could put their number on a register, and telemarketers, including telemarketers from overseas, would face penalties if they phoned a number on the register.[2]

After considering the submissions received in response to the discussion paper, the Government enacted the Do Not Call Register Act 2006 (Do Not Call Register Act).[3] The Do Not Call Register Act established a national, legislated Do Not Call Register which operates to protect consumers from nuisance telemarketing phone calls.[4]

This Bill is modelled on the Do Not Call Register Act in that it seeks to establish a national Do Not Knock Register which will operate so that unsolicited marketing visits may not be made to an address on the proposed register. 

Basis of policy commitment

Victorian reports

Two Victorian reports deal with consumer experiences relating to energy direct marketers.[5] The first of the reports found that:

… retailers are regularly in breach of existing guidelines and laws, and increasingly, consumers are entering new contracts without a full understanding of the terms and conditions. High pressure selling practices are making many consumers more vulnerable to being transferred without full consent.[6]

The report concluded that:

… direct sales channels, particularly door-to-door selling, are in and of themselves problematic, not only for individual consumers but also for the competitive market. Direct sales practices involve approaching consumers to pique their interest in a particular product that they are otherwise not interested in. More often than not, this requires placing significant pressure to coerce consumers into agreeing to a particular course of conduct.[7]

The second report related specifically to the experiences of the African community in west Melbourne, stating that ‘African community members are vulnerable to the tactics of door-to-door sales people, with little or no understanding of the complex contractual obligations involved or the right to or meaning of the cooling off period’.[8]

ACCC report

On 17 August 2012 the Australian Competition and Consumer Commission (ACCC) launched a comprehensive research report on the door-to-door sales industry in Australia, which it had commissioned from independent researchers Frost and Sullivan Australia Pty Ltd.[9] The report, entitled Research into the door to door sales industry in Australia (the ACCC report)[10] was prepared from information provided by key traders using door to door service providers, and both former, and current, door-to-door sales people.[11] 

Products and services sold door-to-door

The ACCC report identifies the products and services which are most commonly sold door-to-door in Australia. They are:

•       energy (electricity and/or gas supply)

•       pay TV services

•       telecommunications (especially fixed line telephony and broadband)

•       media (particularly newspaper subscriptions)

•       solar energy (especially solar panels) and

•       others (including home appliances, home insulation, security systems, educational software, club memberships, photography and first aid products).[12]

Estimated number of sales

Based on estimates of annual door-to-door sales by industries derived from interviews, sales per industry are summarised in the table below.

Product

Number of door-to-door sales 2011

Energy—that is, electricity and gas

1 000 000

Pay TV

34 000

Telecoms

138 000

Solar Panels

52 000

Media subscriptions

24 000

Other (for example, home insulation, appliances, educational software)

60 000

Total

1 308 000

              Source: Frost and Sullivan estimates[13]

It should be noted that the ACCC report provides a correlation between the number of sales as outlined in the table above and the number of calls that a door-to-door sales agent makes per day. The report states:

The key measure used in the industry is sales per agent per day. This differs significantly by product category, with energy sales typically highest at 2.5 – 3.0 per day and products such as pay TV and telecoms at 0.7 – 1.1. To achieve this number of sales, an agent will typically call upon 50-80 households per selling day, with between 42 per cent and 50 per cent likely to be at home, and around 25 per cent – 30 per cent of these prepared to listen to a sales presentation.[14]

This provides a valuable perspective—for each of the 1 308 000 sales in the table above,
door-to-door sales agents may have knocked on 50–80 doors.[15]

Future trends in door-to-door sales

The ACCC report identifies two factors which are likely to impact on the use of door-to-door sales over the medium-term.

The first is the development of the National Broadband Network (NBN). The ACCC report states:

More than 4000 homes and businesses were connected to the NBN at the end of 2011 and work is already underway on extending the network to towns and suburbs covering a further half a million premises in 2012. At the peak of construction it is estimated that 6000 homes per day will be connected. As a wholesale network, service providers will be able to provide retail services to customers over the NBN. This provides a strong opportunity for door-to-door sales activity, which can be timed to coincide with the roll-out of the NBN to a particular locality, and multiple service providers may use the door-to-door channel.[16]

The second is the enhanced competition in energy markets:

Increased competition in retail energy markets typically stimulates door-to-door sales as this is the major channel used particularly by new entrant retailers... Following the sale of state-owned retailers in NSW in 2011, competitive activity increased significantly in that state, and consequently stimulated door-to-door sales. Future changes in markets like Tasmania, WA and the Northern Territory, where there is currently limited or no retail competition for small customers, may similarly stimulate door-to-door sales activities in those states.[17]

In addition, the ACCC report notes that some traders consider that the introduction of compliance schemes such as Energy Assured are likely to reduce the incidence of consumer issues arising from door-to-door sales and increase the professionalism of service providers and agents.[18] The ACCC report concludes that the perceived advantages of this method of sales and its effectiveness will continue to drive usage.[19]

Committee consideration

The Bill has been referred to the House of Representatives Standing Committee on Social Policy and Legal Affairs (the Committee) for inquiry and report.[20] Public hearings were held on 22-23 August 2012.[21] At the time of writing this Bills Digest no reporting date had been set. The views of submitters to the inquiry are canvassed below.

The Bill was also considered by the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) which noted that the:

… bill was not accompanied by a satisfactory Explanatory Memorandum. Although the Explanatory Memorandum contains a Statement of Compatibility with Human Rights (SOC), the Explanatory Memorandum does no more than set out briefly the overall purpose of the Bill.[22]

In the relation to the proposed prohibition on the making of unsolicited marketing visits to residential and government addresses, the Scrutiny of Bills Committee stated that:

… it may be thought to infringe on a number of practices that rely on the freedom to communicate views and beliefs about politics and religion. The Bill contains a number of exemptions in Schedule 1 which allow ‘designated’ marketing calls to ensure political parties, independent members of parliament, political candidates and their delegates can make door to door visits. Also included are exemptions ensuring political, religious and not for profit organisations are not prevented from making door to door visits.

The SOC asserts that these exemptions ensure that the rights in issue are not impinged. However, the Committee’s view is that neither the Explanatory Memorandum nor SOC engage with the relevant issues in an appropriate level of detail. The precise nature of the exemptions is not elucidated and neither is the question of whether the exemptions are over or under‑inclusive adequately addressed.[23]

Other comments by the Scrutiny of Bills Committee are incorporated in the discussion below.

Position of major interest groups

At the time of writing this Bills Digest, the Committee had received 11 written submissions. Opinions about the Bill are polarised.

Submitters such as the Direct Selling Association of Australia and Salmat, whose business models include door-to-door sales, oppose the Bill on the grounds that the Australian Consumer Law (ACL[24]) already regulates the practice.[25] Energy Assured, which manages the voluntary Code of Practice for the retail energy industry, agreed with that view and noted that ‘a Do Not Knock register will have administrative costs to set up and manage; costs which could ultimately be passed on to families’.[26]

In comparison, submitters such as Consumer Action Law Centre argued that ‘there is significant, widespread and proven consumer detriment arising from door-to-door selling practices’ and that ‘there are a number of weaknesses with the Australian Consumer Law's regulation of unsolicited sales, which mean that consumers are vulnerable to door-to-door marketing’.[27]

The level of vulnerability felt by some members of the community is described in the submission from National Seniors Australia, which states:

Given that some older Australian households experience limited budgets along with rising financial concerns, it is imperative to provide protection to prevent further vulnerability. With regard to door to door sales, a recent Australian Competition and Consumer Commission report reveals that the vulnerable and disadvantaged are deliberately targeted to complete a sale. Agents have specifically stated that approaches to conclude the sale of a product are aimed at the elderly.

Difficulties arise from these methods of sale due to the provision of misleading information, contracts that do not reflect what was verbally agreed upon and the pressure from returning sales representatives which can generate feelings of powerlessness and intimidation.[28]

These polar opposite views—that is, the perceived need for a Do Not Knock register by groups representing the disadvantaged in the community and the strong resistance to the register by representatives of traders selling door-to-door—were also reflected in oral evidence to the Committee.[29]

Financial implications

According to the Explanatory Memorandum to the Bill it will have no financial impact.[30] However, it is not clear that this is correct. The absence of adequate funding for the Bill is outlined below.

Main issues

There are three main issues arising from the Bill:

•       first, whether it is necessary and beneficial to establish a regulatory framework to support a Do Not Knock Register (the need for a register)

•       second, whether this Bill has been sufficiently tailored to address the perceived policy gap (drafting of the Bill) and

•       third, the absence of adequate funding to support the Bill (funding considerations).

The need for a Do Not Knock Register

Policy rationale

According to the Explanatory Memorandum to the Do Not Call Register Bill 2006, the need for a Do Not Call register arose because:

The Government is concerned that the rate of unsolicited telemarketing calls has grown significantly in recent years. There have been rising community concerns about the inconvenience and intrusiveness of telemarketing on Australians, as well as concerns about the impact of telemarketing on an individual's privacy.[31]

The creation of the Do Not Call register was a policy response to what was ascertained, after extensive consultation, to be a community-wide problem. 

The ACCC report acknowledges:

instances in which targeting occurred based on age (both older and younger consumers), marital status (such as single parents), housing status (such as housing commission or first home) and benefit status (such as Centrelink benefits).[32]

The Bill proposed to address the difficulties which some sectors of the community are reported as experiencing as a result of the ‘aggressive door-to-door sales tactics’ of some industries.[33]  However, it is not clear that the Bill is needed to protect these vulnerable members of the community at this time, given the consumer protections which are contained in ACL as outlined below. It may be that further education by the ACCC about consumers’ rights would be sufficient.

Australian Consumer Law

The ACL already contains significant protections for consumers which would seem to be sufficient to address the problem of door-to-door sales persons.

Protections available under the Law

The protections include, but are not limited to, that salespersons:

•       must not visit:

–      on Sundays or public holidays at all

–      before 9am on Monday to Saturday

–      after 6pm on weekdays and

–      after 5pm on Saturdays (subsection 73(1) of the ACL).

•       must carry an identity card, tell a person their name, the name and address of the organisation they represent and disclose the purpose of their visit (section 74 of the ACL and regulation 82 of the Competition and Consumer Regulations 2010 (the Regulations)[34])

•       must tell a person that they can be asked to leave, must leave immediately if asked to do so and must not return for at least 30 days (sections 74 and 75 of the ACL)

•       must tell a person about their ‘cooling off’ rights before the person signs any agreement—that is, the right to cancel a contract for any reason without penalty, within 10 business days (sections 76 and 86 of the ACL and regulation 83 of the Regulations) and

•       must tell a person how to exercise their cooling off rights (section 76 of the ACL).

In addition, there are requirements which must be satisfied in relation to the sales agreement including that it is written in plain, clear language setting out the full terms and conditions and that the person has the right to ‘cool off’. The sales agreement must be accompanied by a form that the person can use to cancel the agreement during the cooling off period.[35]

Remedies for breaching the ACL

As the regulator, the ACCC has commenced a number of enforcement actions and is investigating several more, with a view to taking court action against companies or their door-to-door sales agents who breach the ACL. In particular, the ACCC instituted proceedings in the Federal Court of Australia alleging that:

… the respondents breached the Australian Consumer Law by failing to immediately leave the premises at the request of an occupier. The ACCC contends that consumers requested the salespeople to leave by placing a 'do not knock' sign on their door.[36]

At the time of writing this Bills Digest those matters were yet to be finalised.  However, it should be noted that if the ACCC is successful in those proceedings there would not appear to be any necessity for a legislative scheme such as the one proposed by this Bill.

Liberal Party MP, Bruce Billson, had this to say about the Bill:

… Mr Georganas is actually proposing that we now create a ‘do not knock’ register … The belief was that more red tape was the solution, when all we needed to do was to get the message out that if people do not want door-to-door salespeople coming to their house they simply have to ask them to leave, and they are obliged to leave under the law … That is already embedded in the current law and we should really be looking to make sure the law behaves as it was conceived.[37]

Drafting of the Bill

The Bill has been drafted to closely reflect the terms of the Do Not Call Register Act. However, the drafting does not appear to be sufficiently tailored for its purpose. For example:

First, there is no lead agency nominated—instead the proposed Register is to be established by a Registrar who is appointed by the Minister for this purpose.[38] In contrast, the Do Not Call Register Act provides for the Do Not Call register to be kept by the Australian Communications and Media Authority (ACMA), or by a third party on ACMA’s behalf. The absence of a designated agency has implications for the funding to support the Bill, as outlined below.

Second, the Do Not Call Register Act, of itself, does not contain a complaint making mechanism.  However, Part 26 of the Telecommunications Act 1997 (Telecommunications Act) allows ACMA to investigate certain matters relating to telecommunications, including contraventions of the Do Not Call Register Act, or regulations made under that Act.  Anyone may make a complaint to ACMA about such contraventions.[39]

Clause 2 of Schedule 4 to the Bill seems to reflect, in part, the relevant provision of the Telecommunications Act to provide a complaints process for persons who are aggrieved by
door-to-door sales persons.  Clause 3 of Schedule 4 to the Bill provides the Registrar with powers to obtain information and documents.  It appears that this is based on the provisions of section 522 of the Telecommunications Act.  Similarly clause 4 of Schedule 4 to the Bill provides the Registrar with powers to inspect and copy documents—a provision which appears to be based on sections 527–528 of the Telecommunications Act. However, despite being modelled on the relevant provisions of the Telecommunications Act, the Bill contains some inconsistencies. For example, the Bill provides that a person is not excused from giving information or evidence or producing a document once requested. However, there is no power in the Bill, as drafted, to compel a person to give evidence as there is in section 522 of the Telecommunications Act.

Third, the terms contained in the Do Not Call Register Act have been inadequately adapted for the purpose of this Bill. For example, the Bill prohibits the making of designated marketing calls
(clause 4 of the Bill). The term directly reflects the term ‘designated telemarketing calls’ under the Do Not Call Register Act. However, as the Bill is seeking to prohibit ‘visits’ as opposed to ‘calls’ the drafting and interpretation of the Bill would be improved through the use of terms better suited to the problem it is seeking to remedy.

Other issues related to drafting are referred to below.

Absence of adequate funding to support the Bill

The absence of adequate funding to support the Bill would appear to be a significant problem.

First it could reasonably be expected that there would be start up costs. As already stated, this Bill is modelled on the Do Not Call Register Act which creates the Do Not Call register. Budget funding of $33.1 million was provided over four years to cover the costs of establishing and operating the Do Not Call Register.[40]

Second it could reasonably be expected that there would be ongoing monitoring and compliance costs. Once the proposed Do Not Knock register is established, the responsible agency would be required to exercise its powers in relation to breaches of the register in a responsible manner.  According to the ACMA Annual Report 2010–11:

The telemarketing and fax marketing industry contributes to the cost of operating and maintaining the Do Not Call Register through the payment of subscription fees determined by the ACMA on a cost recovery basis … The cost recovery arrangements for the register are based on ‘fee for service’ and do not include the costs to establish the register or the ACMA’s regulatory costs associated with monitoring and enforcing compliance with the register.[41]

As noted above, the Bill does not indicate which Commonwealth agency will be responsible for the proposed Do Not Knock register. It would appear, however, that Mr Georganas did intend for ACMA to take on responsibility for the proposed Do Not Knock register, telling the Standing Committee on Social Policy and Legal Affairs:

… there is a register that already exists, so there is a program that exists. You could quite easily add it on to that particular program, where the infrastructure and the structure is already up and running.[42]

However, even if the ACMA were to take on the responsibility for the proposed register as an adjunct to its existing duties under the Do Not Call Register Act with similar cost recovery arrangements put in place, it cannot be assumed that the establishment and maintenance of a Do Not Knock register would be a cost-neutral exercise. 

At present there are some 7.5 million numbers on the Do Not Call Register and these numbers have increased annually as shown by the table below. There have been no projections of the expected numbers of addresses to be placed on the proposed register and therefore, no significant analysis of the costs associated with it. However, if the registrations were to increase at a similar rate to the registrations on the Do Not Call Register, it is likely that the costs of monitoring compliance would be significant.

Source: Do Not Call Register website[43]

Key features of the Bill

As the focus of this Bills Digest is on the underlying policy rationale for creating a Do Not Knock register, a detailed analysis on each and every provision of this Private Member’s Bill has not been included. Rather, in relation to the provisions, this Bills Digest contains a broad brush description of the operation of the Bill and then briefly identifies some of the most obvious problems arising from its drafting. These are in addition to the concerns raised under the heading ‘Main issues’.

As previously mentioned above, the Bill is drafted in almost identical terms to the Do Not Call Register Act. The key features of this Bill are:

•       a prohibition on making unsolicited ‘marketing calls[44]’ to an address which is registered on the Do Not Knock Register, subject to certain exemptions[45]

•       an extensive list of exemptions from the general prohibition for ‘designated marketing calls’ from government bodies[46], religious organisations and charities[47], independent members of parliament and candidates[48], educational institutions[49], and other bodies prescribed by regulation[50]

•       a requirement that agreements or contracts for the making of marketing calls must require compliance with the Do Not Knock Register Act (when enacted[51])

•       a requirement for a Do Not Knock Register to be established[52], enabling an occupier or a nominee of the occupier to register an address on the Register[53]

•       civil penalties[54] and injunctions for breaches of the legislation[55] and

•       a power for the Registrar to investigate complaints and obtain information and documents.[56]

Other issues

In addition to the Main issues outlined above, there are other matters concerning the establishment and operation of the Do Not Knock Register which arise out of the drafting of the Bill. These include:

•       the constitutional validity of the Act (when enacted)

•       in addition to the absence of funding to support the Bill (as noted above) the cost of participating, and the nature of the fee (that is, whether it remains a fee or amounts to a tax[57])

•       the timeframes for establishing and enforcing the scheme

•       the reliance on delegated legislation for informing the details and operation of the scheme and

•       the proposed enforcement powers.

Constitutional validity

The submission to the Committee by George Williams of the University of New South Wales addresses the question of whether the Bill is likely to be constitutionally valid. He concluded that if passed, the Bill would be a valid enactment under the Australian Constitution.[58] He based his view, principally, on the definition of ‘marketing call’ in clause 5 of the Bill, which forges a link with a number of powers within the Constitution which allow for the Commonwealth to make laws about:

•       foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth: section 51(xx)

•       trade and commerce with other countries, and among the states: section 51(i)

•       postal, telegraphic, telephonic, and other like services: section 51(v) and

•       the government of any territory: section 122.

Nature of the fee

Clause 36 of the Bill contains a broad regulation making power. Subclause 14(2) provides for access to the proposed register on payment of ‘the fee (if any) prescribed by the regulations’. This will, presumably, allow for a cost recovery mechanism to operate where door-to-door sales agencies which submit a list of addresses to the Registrar and pay the required fee are able to have the addresses on the list checked against the register. Of concern is that legislation that provides for the rate of a fee or levy to be set by regulation carries a risk that the fee may, in fact, become a tax. Where a fee is to be set by subordinate legislation, it is important to determine whether the power to impose fees has been limited in some way.[59] For example, the Do Not Call Register Act, on which this Bill is modelled, contains a provision which makes clear that the fee is not to be such as to amount to taxation.[60] However this Bill does not provide for any fetters to the power.

Timeframe for establishing the register

The whole of the Act (when enacted) is proposed to commence on the day after the Act receives the Royal Assent. This would not seem to provide time for the establishment of appropriate infrastructure for the register itself, for the appointment of the Registrar or for the development of relevant policies and procedures associated with the operation of the register.  It compares with the staged commencement of the Do Not Call Register Act.  That Act established the register and the regulation making power, as well as conferring responsibilities for the Do Not Call Register Act upon ACMA on 30 June 2006.  The remaining provisions of the Do Not Call Register Act did not commence until 31 May 2007.

Reliance on delegated legislation

The Bill relies heavily on the use of the regulation making power in clause 36 of the Bill. This means that much needed detail about the operation of Bill is absent. Examples of the regulation making provisions include:

•       the Bill prohibits the making of ‘marketing calls’ which are defined as being ‘visits’ for a certain purpose. Whilst a number of ‘purposes’ are listed in the Bill, further purposes of a visit can be defined by regulation: paragraph 5(3)(k) of the Bill[61]

•       the manner and form of an application for an address to be entered on to the register is to be prescribed by regulation[62]: clause 11 of the Bill

•       the nature of the premises which can be entered on the register can be prescribed by
regulation: clause 12 of the Bill

•       the Bill provides for a minimum three year period for an address to remain on the register, however, a longer period can be prescribed by regulation[63]: clause 13 of the Bill

•       a person who is deemed to be a nominee of the owner of the address can be prescribed by regulation: clause 29 of the Bill

•       regulations may provide the circumstances in which the consent of the occupier or the nominee of the occupier for an address to be included on the register may not be inferred[64]: clause 5, Schedule 2 to the Bill and

•       matters to be included in an infringement notice may be set out in regulations[65]: clause 3, Schedule 3 to the Bill.

The report by the Scrutiny of Bills Committee also draws attention to the use of the regulation making power and notes that the Explanatory Memorandum is silent about the rationale for the use of the power. As a result, the Scrutiny of Bills Committee has sought the Member's advice as to whether an amended Explanatory Memorandum addressing the issues can be provided.[66]

Proposed enforcement powers

The significant difference between this Bill and the Do Not Call Register Act is that clause 3 of Schedule 4 to the Bill contains powers for the Registrar to obtain information and documents where the Registrar has reason to believe that the information or document are relevant to an investigation of a contravention of the Do Not Knock Act (when enacted).  However, as set out above, ACMA has these powers in relation to the Do Not Call Register Act under Part 26 of the Telecommunications Act.

Clause 6 of Schedule 4 to the Bill contains a significant inconsistency. It provides that a person is not excused from giving information or evidence or producing a document once requested, on the ground that the information, or the document, might incriminate the person. However, there is no power in the Bill as drafted to compel a person to give evidence.

Nor do the provisions of clause 3 of Schedule 4 to the Bill contain specifics about the manner and form of the giving of notice to produce documents, or give information.  By comparison, section 522 of the Telecommunications Act provides that where ACMA has reason to believe that a person has information, or a document, or is capable of giving evidence that is relevant to the performance of its functions, ACMA may give the person a written notice requiring the person to give the information, produce the documents, or appear before the ACMA at a time and place specified in the notice.  In addition, subsection 522(4) creates an offence in circumstances where a person who has been given such a notice, does not comply with it.

While the use of the power in clause 6 of schedule 4 to the Bill may be necessary to ensure effective administration of Commonwealth law, the exercise of these powers infringes upon fundamental rights—that is, the freedom from self incrimination.[67] Clause 6 of schedule 4 to the Bill does, however, provide that any information, evidence or document that is provided by an individual is not admissible in evidence against that person in criminal proceedings. This is consistent with the terms of section 524 of the Telecommunications Act on which this clause would seem to have been modelled.

This was also noted in the report by the Scrutiny of Bills Committee.[68]

Concluding comments

Sections 73–77 of the Australian Consumer Law already regulate door-to-door sales. The ACCC is the regulator and has already taken action in relation to complaints that have been made about
door-to-door sales methods.

This Bill seeks to establish an overlapping protection—without specifying which agency would be responsible for regulating that protection and how it would be financed. Without further quantitative data about how many members of the community require this additional protection, and the cost of providing it, there would not appear to be a sufficient policy reason for such regulation to be imposed.

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ISSN 1328-8091

[1].               Department of Communications, Information Technology and the Arts, Introduction of a Do Not Call Register: possible Australian model, discussion paper, October 2005, viewed 23 August 2012, http://www.apcontactcenters.com/artigos/Do%20Not%20Call%20Discussion%20Paper.pdf

[2].               H Coonan (Minister for Communications, Information Technology and the Arts), A solution for nuisance calls: options for an Australian Do Not Call Register, media release, 30 October 2005, viewed 23 August 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2FULRH6%22

[3].               Do Not Call Register Act 2006, viewed 23 August 2012, http://www.comlaw.gov.au/Details/C2012C00159/Download

[4].               M A Neilsen, Do Not Call Register Bill 2006, Bills Digest, no. 160, 2005–06, Parliamentary Library, Canberra, 2006, viewed 23 August 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillsdgs%2FIK0K6%22

[5].               Consumer Action Law Centre and the Financial and Consumer Rights Council, Coercion and harassment at the door: consumer experiences with energy direct marketers, Melbourne, November 2007, viewed 23 August 2012, http://www.consumeraction.org.au/downloads/EnergyMarketinginVictoria-Finalv.3.pdf and Footscray Community Legal Centre and Financial Counselling Service Inc., The African consumer experience of the contestable energy market in the west of Melbourne, Melbourne, March 2009, viewed 23 August 2012, http://www.esc.vic.gov.au/getattachment/94c82335-8fc7-4d6d-ac11-5d213bca2dbd/African-experience-of-Melbourne-Energy-Market-Marc.pdf

[6].               Consumer Action Law Centre and the Financial and Consumer Rights Council, Coercion and harassment at the door, op. cit., p. 36.

[7].               Ibid., p. 37.

[8].               Footscray Community Legal Centre and Financial Counselling Service Inc., The African consumer experience of the contestable energy market, op. cit., p. 8.

[9].               Australian Competition and Consumer Commission, ACCC cracks down on door to door sales practices, media release, 17 August 2012, viewed 23 August 2012, http://www.accc.gov.au/content/index.phtml/itemId/1070537/fromItemId/2332

[10].               Frost and Sullivan Pty Ltd, Research into the door to door sales industry in Australia, August 2012, viewed 23 August 2012, http://www.accc.gov.au/content/item.phtml?itemId=1070526&nodeId=9244ae9eca6a60727f3c75ff507124cc&fn=Research%20into%20the%20door%20to%20door%20sales%20industry%20in%20Australia%20%E2%80%93%20August%202012.pdf

[11].               Australian Competition and Consumer Commission, Knock! Knock! Who’s there: door to door sales industry report and consumer guidance launched, ACCC website, 17 August 2012, viewed 23 August 2012, http://www.accc.gov.au/content/index.phtml/itemId/1070506/fromItemId/815215/fromACCC

[12].               Frost and Sullivan Pty Ltd, Research into the door to door sales industry in Australia, op. cit., pp. 7–8.

[13].               Ibid., p. 8.

[14].               Ibid., p. 47.

[15].               Ibid., p. 48.

[16].               Ibid., p. 45.

[17].               Ibid.

[18].               Energy Assured is an industry initiative to ensure the best practice of door-to-door sales of energy contracts. Further information about the voluntary Code of Practice adopted by energy retailers and marketers is on the Energy Assured website, viewed 23 August 2012, http://energyassured.com.au/

[19].               Frost and Sullivan Pty Ltd, Research into the door to door sales industry in Australia, op. cit., p. 11.

[20].               House of Representatives Standing Committee on Social Policy and Legal Affairs Committee, Inquiry into the Do Not Knock Register Bill 2012, August 2012, viewed 23 August2012, http://www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees?url=spla/bill%20do%20not%20knock/index.htm

[21].               The transcripts from the public hearings can be viewed at: http://www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees?url=spla/bill do not knock/hearings.htm

[22].               Senate Standing Committee for the Scrutiny of Bills, Alert Digest no. 6 of 2012, Senate, Canberra, 20 June 2012, p. 21, viewed 6 September 2012, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=scrutiny/alerts/2012/index.htm

[23].               Ibid., pp. 21–22.

[24].               The Australian Consumer Law is located in Schedule 2 of the Competition and Consumer Act 2010, viewed 6 September 2012, http://www.comlaw.gov.au/Details/C2012C00514/Download

[25].               Direct Selling Association of Australia, Submission to the House of Representatives Standing Committee on Social Policy and Legal Affairs, Inquiry into the Do Not Knock Register Bill 2012, 27 July 2012 and Salmat, Submission to the House of Representatives Standing Committee on Social Policy and Legal Affairs, Inquiry into the Do Not Knock Register Bill 2012, July 2012, viewed 23 August 2012, http://www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees?url=spla/bill do not knock/subs.htm

[26].               Energy Assured Limited, Submission to the House of Representatives Standing Committee on Social Policy and Legal Affairs, Inquiry into the Do Not Knock Register Bill 2012, 27 July 2012, viewed 23 August 2012, http://www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees?url=spla/bill do not knock/subs.htm

[27].               Consumer Action Law Centre, Submission to the House of Representatives Standing Committee on Social Policy and Legal Affairs, Inquiry into the Do Not Knock Register Bill 2012, 6 August 2012, viewed 23 August 2012, http://www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees?url=spla/bill do not knock/subs.htm

[28].               National Seniors Australia, Submission to the House of Representatives Standing Committee on Social Policy and Legal Affairs, Inquiry into the Do Not Knock Register Bill 2012, 22 August 2012, viewed 23 August 2012, http://www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees?url=spla/bill do not knock/subs.htm

[29].               Standing Committee on Social Policy and Legal Affairs, ‘Do Not Knock Register Bill 2012’, House of Representatives, Hansard, 22 August 2012, pp. 1–19, viewed 24 August 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22committees%2Fcommrep%2Fe9abbc72-1805-42b8-9b11-e58e1d970c40%2F0000%22

[30].               Explanatory Memorandum, Do Not Knock Register Bill 2012, p. 2, viewed 3 September 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fr4792%22

[31].               Explanatory Memorandum, Do Not Call Register Bill 2006, viewed 3 September 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fems%2Fr2564_ems_d058b42c-2248-4c00-bb11-b0d51a60f274%22

[32].               Frost and Sullivan Pty Ltd, Research into the door to door sales industry in Australia, op. cit., p. 40.

[33].               Australian Broadcasting Corporation, ‘MP campaigns for do not knock register’, ABC online, 21 March 2012, viewed 23 August 2012, http://www.abc.net.au/news/2012-03-21/do-not-knock-register-georganas/3903358 and G Downie, ‘Door-to-door deceit’, The Canberra Times, 17 August 2012, p. 8, viewed 23 August 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressclp%2F1852622%22

[34].               Competition and Consumer Regulations 2010, viewed 7 September 2012, http://www.comlaw.gov.au/Details/F2012C00410/Html/Text#_Toc328748872

[35].               Section 79 of the ACL. Further information about the protections of consumers from door-to-door salespersons are available on the Australian Competition and Consumer Commission website, viewed 23 August 2012, http://www.accc.gov.au/content/index.phtml/tag/doortodoor/

[36].               Australian Competition and Consumer Commission, ACCC takes court action against energy retailers for door-to-door sales tactics, media release, 27 March 2012, viewed 23 August 2012, http://www.accc.gov.au/content/index.phtml/itemId/1041805/fromItemId/2332

[37].               B Billson, ‘Second reading speech: Legislative Instruments Amendment (Sunsetting Measures) Bill 2012, House of Representatives, Debates, 25 June 2012, p. 7824, viewed 23 August 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F7503935a-ef9f-47a5-9ab8-7a228d52f809%2F0316%22

[38].               Clause 4 of the Bill.

[39].               Section 509, Telecommunications Act 1997.

[40].               M A Neilsen, Do Not Call Register Bill 2006, Bills Digest, no. 160, op. cit., p.8.

[41].               Australian Communications and Media Authority, Annual Report 2010–11, p. 75, viewed 24 August 2012, http://www.acma.gov.au/WEB/STANDARD/pc=PC_410185

[42].               S Georganas, Evidence to the Standing Committee on Social Policy and Legal Affairs, Inquiry into the Do Not Knock Register Bill 2012, 23 August 2012, viewed 6 September 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22committees%2Fcommrep%2F9b13d129-21da-4fc7-94a1-d5a2b7e1412c%2F0001%22

[43].               Do Not Call Register website, viewed 23 August 2012, https://www.donotcall.gov.au/index.cfm

[44].               The term ‘marketing call’ reflects the terms used in the Do Not Call Act and relates comfortably with the common understanding of a telephone call. It sits less comfortably in this Bill which refers, in clause 5 of the Bill, to a ‘marketing call’ as a ‘visit’. A ‘visit’ is then further defined under subclauses 5(2) and (3) of the Bill. In particular, subclause 5(3) lists numerous purposes which would bring a ‘visit’ within the scope of the Bill.

[45].               Clause 8, Part 2 of the Bill and Schedule 1 to the Bill.

[46].               The term ‘government body’ is defined in clause 4 of the Bill as (a) a department of the Commonwealth, a state or a territory; (b) an agency, authority or instrumentality of the Commonwealth, a state or a territory; (c) a department of the government of a foreign country; (d) an agency, authority or instrumentality of the government of a foreign country; (e) a department of the government of a part of a foreign country; or (f) an agency, authority or instrumentality of the government of a part of a foreign country.

[47].               Clause 2, Schedule 1 to the Bill.

[48].               Clause 3, Schedule 1 to the Bill.

[49].               Clause 4, Schedule 1 to the Bill.

[50].               Clause 5, Schedule 1 to the Bill.

[51].               Clause 9, Part 2 of the Bill.

[52].               Clause 10, Part 3 of the Bill.

[53].               Clause 11, Part 3 of the Bill.

[54].               Part 4 of the Bill.

[55].               Part 5 of the Bill.

[56].               Schedule 4 to the Bill.

[57].               Section 55 of the Constitution provides that laws imposing taxation must deal only with the imposition of taxation and any provision dealing with any other matter is of no effect.

[58].               G Williams (University of New South Wales), Submission to the House of Representatives Standing Committee on Social Policy and Legal Affairs, Inquiry into the Do Not Knock Register Bill 2012, 19 July 2012, viewed 23 August 2012, http://www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees?url=spla/bill do not knock/subs.htm

[59].               Subordinate (also known as delegated) legislation is legislation made not directly by an Act of the Parliament, but under the authority of an Act of the Parliament. Forms of subordinate legislation include regulations, ordinances, determinations, orders, rules, standards, principles, guidelines and declarations.

[60].               Subsection 21(5), Do Not Call Register Act.

[61].               This has a bearing on the provisions contained in Schedule 1 which seeks to define ‘designated marketing calls’.

[62].               Under paragraphs 15(c)–(d) of the Do Not Call Register Act, the manner and form of applications may be specified in a determination.  Section 18 of the Do Not Call Register Act makes clear that such determinations are legislative instruments.

[63].               This is consistent with the terms of section 17 of the Do Not Call Register Act.

[64].               This reflects clause 5 of Schedule 2 to the Do Not Call Act.

[65].               This reflects clause 3 of Schedule 3 to the Do Not Call Act.

[66].               Senate Standing Committee on the Scrutiny of Bills, op. cit., p. 21.

[67].               ‘The common law privilege against self-incrimination will protect a natural person complying with a notice to disclose information or documents under a notice to produce or attend, unless the privilege is expressly or impliedly overridden’ by legislation. ‘The privilege is relevant for regulatory schemes because it entitles a person to refuse to answer a question put to him or her by an authorised officer under a regulatory scheme on the basis that he or she may incriminate him or herself: Pyneboard Pty Ltd v Trade Practices Commission [1983] 152 CLR 328’, viewed 11 September 2012, http://www.austlii.edu.au/au/cases/cth/HCA/1983/9.html. Legislation should clearly specify if the privilege is to be overridden and if it is removed then at a minimum a ‘use’ immunity provision should be included as some form of protection. If a person claims a ‘use’ immunity, no information or evidence given by them can be directly used against them. Source: Commonwealth of Australia, ‘A guide to framing Commonwealth offences, Infringement Notices and Enforcement Powers’, September 2011 edition, pp. 93–97, viewed 6 September 2012, http://www.ag.gov.au/Publications/Documents/AGuidetoFramingCthOffencesInfringementNoticesandEnforcementPowersCLLEB.pdf

[68].               Senate Standing Committee on the Scrutiny of Bills, op. cit., p. 22.