On 25 May 2006, the Do Not Call Register Bill 2006 (Bill) was introduced into federal parliament. The Bill will for the first time establish an Australian national Do Not Call Register allowing individuals to opt-out of receiving unsolicited voice calls offering, advertising or promoting goods or services, interests in land, business or investment opportunities, or soliciting donations (telemarketing calls).
If the Bill is enacted, Australians will be able to choose to register their private (non-business) fixed and mobile numbers free of charge on a new Do Not Call Register to be administered by the Australian Communications and Media Authority (ACMA). Telemarketers will be required to pay for access to the register and access will only be by way of submitting a list of proposed numbers to the ACMA. The ACMA will advise the telemarketer which numbers are, or are not, on the register. This is likely to be effected by the ACMA returning the telemarketer’s list with all registered numbers removed.
Telemarketing calls to any number on the Do Not Call Register will be banned unless the receiver has actually consented to receiving the call, or the call is a 'designated telemarketing call'. A designated telemarketing call is one which is made for specified limited purposes by a religious organisation, charity, educational institution, government body, political party, member or parliament or parliamentary candidate.
The Bill also requires that outsourced telemarketing agreements include an express provision requiring the outsourcer and its employees to comply with the Bill.
The ACMA will be able to issue formal warnings or infringement notices and institute court proceedings in the Federal Court or Federal Magistrates Court.
Maximum civil penalties imposed by the Bill range from $220 for first offenders who are individuals subject to an infringement notice to $1.1 million, if the contravention is by a body corporate with a prior record. Aiding or abetting a breach will also be banned.
In addition to imposing civil penalties, the Federal Court can order that a perpetrator compensate any victim for any loss or damage suffered as a consequence of the contravention.
The prohibitions on voice calls in the Bill closely mirror those imposed by the Spam Act 2003 on unsolicited commercial electronic messages. Voice calls are expressly excluded from the regime under the Spam Act which prohibits the sending of unsolicited electronic messages that offer, advertise or promote goods or services, land, interests in land, business or investment opportunities.
Spam vs telemarketing regulatory differences
The purposes of electronic communications banned by the Spam Act are almost identical to those of telemarketing calls under the Bill, however, communications banned under the Spam Act include those designed to obtain property, financial advantage or gain by deception or dishonesty. Voice calls of this nature are not expressly prohibited by the Bill.
The Spam Act also does not expressly prohibit the sending of electronic messages with a purpose of soliciting donations, while the proposed Bill bans voice calls for this purpose.
Other notable differences between the two regimes are that the Bill excludes voice calls made by parliamentary candidates while the Spam Act does not make this exception for electronic messages, and the Spam Act contains an additional exclusion for electronic messages containing only factual information.
The pecuniary penalties for breaches of the Bill are the same as imposed under the Spam Act.
The government intends that the ACMA commence implementation of the register as early as possible in 2007.
Businesses that rely on email or SMS for marketing purposes need to be aware of, and comply with, the Spam Act 2003.
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