Who Called? An Overview of the Do Not Call Register
by Peter Black from Queensland University of Technology
All Australians will probably have experienced the annoyance of telemarketing phone calls. A growing sense of dissatisfaction within the community about telemarketing activities (including privacy concerns) prompted the Federal Government to introduce on 25 May 2006 the Do Not Call Register Bill 2006 and the Do Not Call Register (Consequential Amendments) Bill 2006. These Bills provide a framework to establish a Register that will allow individuals to opt-out from receiving unsolicited telemarketing calls. The proposed model takes features from similar schemes already operating in the United Kingdom and Canada, but is primarily based on the model that has been operating in the United States of America since 2003.to offer to supply goods or services; or
The Do Not Call Register Bill provides for the Australian Communication and Media Authority (ACMA) to establish an electronic register of telephone numbers known as the Do Not Call Register. Individuals will apply to have their private or domestic telephone numbers put on the Register. The Bill then provides that a person, including a body corporate, must not make, or cause to be made, a telemarketing call to an Australian number if that number has been registered on the Do Not Call Register.
A telemarketing call is defined as a voice call to a telephone number where the purpose, or one of the purposes, of the call is:
to advertise or promote goods or services; or
to advertise or promote a supplier, or prospective supplier, of goods or services; or
to offer to supply land or an interest in land; or
to advertise or promote land or an interest in land; or
to advertise or promote a supplier, or prospective supplier, of land or an interest in land; or
to offer to provide a business opportunity or investment opportunity; or
to advertise or promote a business opportunity or investment opportunity; or
to advertise or promote a provider, or prospective provider, of a business opportunity or investment opportunity; or
to solicit donations; or
a purpose specified in the regulations.
However, the Bill provides that there are certain exceptions. For example, if the telephone account holder consented to the making of the call; if the person made the call, or caused the call to be made, by mistake; or if the person took reasonable precautions, and exercised due diligence, to avoid the contravention. Any person who wishes to rely on one of those exceptions bears the evidential burden in relation to that matter. There are also exemptions for certain types of telemarketing calls, such as calls from charities, religious organisations, educational institutions (where the call is made to a student or alumni) and government bodies.
The Bill also requires that agreements for the making of telemarketing calls must comply with the Act. The Explanatory Memorandum to the Bill says that this requirement is aimed at organisations which may contract with another party to provide telemarketing services on their behalf.
Sanctions and Enforcement
Any contravention of the Act will attract civil sanctions. The prohibitions contained in the Bill are civil penalty provisions, not criminal offences. If the Federal Court or the Federal Magistrates Court is satisfied, on the application of the ACMA, that a person has contravened a civil penalty provision, it will be able to order the person to pay to the Commonwealth such pecuniary penalty as the Court determines to be appropriate. The amount will depend on several factors, including:
whether or not the person has a prior record, that is whether or not they have previously been found by the Court to have contravened the particular provision. The ratio between a maximum penalty payable for a person with no prior record and a person with a prior record is five times; and
whether or not the breach is by a body corporate or an individual. The maximum penalties for bodies corporate are five times that for an individual.
In addition to the civil sanctions, the Bill provides for a tiered enforcement regime that allows for a range of enforcement measures to be initiated by the ACMA, depending upon the seriousness of the breach of a penalty provision. The enforcement measures available to the ACMA include a formal warning, acceptance of an enforceable undertaking, or the issuing of an infringement notice. The ACMA may also apply to the Federal Court for an injunction.
The ACMA may institute proceedings in the Federal Court or the Federal Magistrates Court for breach of a civil penalty provision. As well as ordering a person to pay a substantial monetary penalty, the Court may make an order to recover financial benefits that are attributable to the contravention of the civil penalty provision, or may order compensation to be paid to a victim who has suffered loss or damage as a result of the contravention.
The Do Not Call Register (Consequential Amendments) Bill 2006, which accompanies the Do Not Call Register Bill, makes various amendments to the Telecommunications Act 1977 and the Australian Communications and Media Authority Act 2005 to enable the effective investigation and enforcement of the Bill. The main elements proposed in the Consequentials Bill are:
a requirement that the ACMA develop an industry standard which would set out various minimum contact standards relating to issues such as the time telemarketers are permitted to call and what information they must provide about their organisation;
a framework to enable industry to develop codes to deal with the making of telemarketing calls, based on Part 6 of the Telecommunications Act;
appropriate information gathering powers for the ACMA to investigate complaints relating to breaches of the Do Not Call Register Bill and regulations made under the Bill, based on Parts 26 and 27 of the Telecommunications Act.
Certain telemarketing calls authorised by candidates for a Commonwealth, State, Territory or local government election are considered ‘designated telemarketing calls’. This has the effect that calls authorised by candidates are exempt, and can be made without contravening the Act. Interestingly, the Bill also provides that it would not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.
The Act will be reviewed by the Minister for Communications, Information Technology and the Arts every three years.
As has been stated, this Bill builds upon the experience of the United Kingdom, Canada and the United States. Let us all hope that these measures will reduce the inconvenience and intrusiveness of telemarketing calls by enabling people to opt-out of receiving those calls.