2008-2009 The Parliament of the Commonwealth of Australia HOUSE OF REPRESENTATIVES Presented and read a first time Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 (Broadband, Communications and the Digital Economy) A Bill for an Act to amend the Do Not Call Register Act 2006, and for other purposes [Page Break] 1 Short title ........................................................................................... 1 2 Commencement ................................................................................. 1 3 Schedule(s) ........................................................................................ 2 Schedule 1--Amendments 3 Part 1--Amendment of the Do Not Call Register Act 2006 3 Division 1--Amendments 3 Do Not Call Register Act 2006 3 Division 2--Application 29 Part 2--Other amendments 32 Telecommunications Act 1997 32 i Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 [Page Break] 2 Act 2006, and for other purposes 3 The Parliament of Australia enacts: 4 1 Short title 5 This Act may be cited as the Do Not Call Register Legislation 6 Amendment Act 2009. 7 2 Commencement 8 (1) Each provision of this Act specified in column 1 of the table 9 commences, or is taken to have commenced, in accordance with 10 column 2 of the table. Any other statement in column 2 has effect 11 according to its terms. 12 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 1 [Page Break] Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 The day this Act receives the Royal Assent. and anything in this Act not elsewhere covered by this table 2. Schedule 1 A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. 1 Note: This table relates only to the provisions of this Act as originally 2 passed by both Houses of the Parliament and assented to. It will not be 3 expanded to deal with provisions inserted in this Act after assent. 4 (2) Column 3 of the table contains additional information that is not 5 part of this Act. Information in this column may be added to or 6 edited in any published version of this Act. 7 3 Schedule(s) 8 Each Act that is specified in a Schedule to this Act is amended or 9 repealed as set out in the applicable items in the Schedule 10 concerned, and any other item in a Schedule to this Act has effect 11 according to its terms. 12 2 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 [Page Break] Amendment of the Do Not Call Register Act 2006 Part 1 1 Schedule 1--Amendments 2 Part 1--Amendment of the Do Not Call Register Act 3 2006 4 Division 1--Amendments 5 Do Not Call Register Act 2006 6 1 Section 3 7 After: 8 · Unsolicited telemarketing calls must not be made to a number 9 registered on the Do Not Call Register. 10 insert: 11 · Unsolicited marketing faxes must not be sent to a number 12 registered on the Do Not Call Register. 13 2 Section 3 (note) 14 After "calls", insert "and marketing faxes". 15 3 Section 4 (definition of authorise) 16 Repeal the definition, substitute: 17 authorise: 18 (a) when used in relation to the making of a telemarketing call-- 19 has a meaning affected by clause 6 of Schedule 1; or 20 (b) when used in relation to the sending of a marketing fax--has 21 a meaning affected by clause 6 of Schedule 1A. 22 4 Section 4 23 Insert: 24 business number means an Australian number other than a number 25 that is used, or maintained, exclusively or primarily for private or 26 domestic purposes. Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 3 [Page Break] Part 1 Amendment of the Do Not Call Register Act 2006 1 5 Section 4 (definition of cause) 2 Repeal the definition, substitute: 3 cause: 4 (a) when used in relation to the making of a telemarketing call-- 5 has a meaning affected by subsection 11(9); or 6 (b) when used in relation to the sending of a marketing fax--has 7 a meaning affected by subsection 12B(10). 8 6 Section 4 (after paragraph (d) of the definition of civil 9 penalty provision) 10 Insert: 11 (da) subsection 12B(1); 12 (db) subsection 12B(8); 13 (dc) subsection 12C(1); 14 (dd) subsection 12C(2); 15 7 Section 4 (definition of consent) 16 After "call", insert "or the sending of a marketing fax". 17 8 Section 4 (definition of dealing with) 18 Repeal the definition, substitute: 19 dealing with: 20 (a) when used in relation to a telemarketing call--includes 21 retrieving the call from a voicemail system or similar system; 22 or 23 (b) when used in relation to a marketing fax--includes: 24 (i) printing the fax; and 25 (ii) retrieving the fax from a device or a computer system. 26 9 Section 4 27 Insert: 28 designated marketing fax has the meaning given by Schedule 1A. 29 10 Section 4 (definition of employee) 30 Repeal the definition, substitute: 31 employee: 4 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 [Page Break] Amendment of the Do Not Call Register Act 2006 Part 1 1 (a) when used in clause 4 of Schedule 1--has a meaning affected 2 by clause 7 of Schedule 1; or 3 (b) when used in clause 4 of Schedule 1A--has a meaning 4 affected by clause 7 of Schedule 1A. 5 11 Section 4 (definition of employer) 6 Repeal the definition, substitute: 7 employer: 8 (a) when used in clause 4 of Schedule 1--has a meaning affected 9 by clause 7 of Schedule 1; or 10 (b) when used in clause 4 of Schedule 1A--has a meaning 11 affected by clause 7 of Schedule 1A. 12 12 Section 4 13 Insert: 14 express consent does not include registered consent. 15 13 Section 4 16 Insert: 17 fax has a meaning affected by section 5A. 18 14 Section 4 19 Insert: 20 industry classification has the meaning given by section 5C. 21 15 Section 4 22 Insert: 23 marketing fax has the meaning given by section 5B. 24 16 Section 4 25 Insert: 26 registered consent means consent entered on the Do Not Call 27 Register. 28 17 Section 4 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 5 [Page Break] Part 1 Amendment of the Do Not Call Register Act 2006 1 Insert: 2 relevant account-holder, in relation to an Australian number, 3 means: 4 (a) if an individual or organisation is solely responsible for the 5 relevant account--the individual or organisation; or 6 (b) if 2 or more individuals and/or organisations are jointly 7 responsible for the relevant account--any of those 8 individuals or organisations. 9 18 Section 4 (definition of relevant telephone account-holder) 10 Repeal the definition. 11 19 Section 4 12 Insert: 13 send includes attempt to send. 14 20 Subsection 5(1) 15 Omit "a telephone", substitute "an Australian". 16 21 Paragraphs 5(1)(c) and (d) 17 Omit "telephone" (wherever occurring). 18 22 After section 5 19 Insert: 20 5A Faxes 21 A reference in this Act to a fax is a reference to a fax, whether or 22 not: 23 (a) the fax is a facsimile of a physical document; or 24 (b) the fax was created by computer software; or 25 (c) the sending of the fax involves the use of: 26 (i) a fax machine; or 27 (ii) a fax server; or 28 (iii) a fax gateway; or 29 (iv) a mail-to-fax system; or 30 (v) equipment specified in the regulations; or 6 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 [Page Break] Amendment of the Do Not Call Register Act 2006 Part 1 1 (vi) a system specified in the regulations. 2 5B Marketing faxes 3 Basic definition 4 (1) For the purposes of this Act, a marketing fax is a fax sent to an 5 Australian number, where, having regard to: 6 (a) the content of the fax; and 7 (b) the presentational aspects of the fax; and 8 (c) the content that can be obtained using the numbers, URLs or 9 contact information (if any) mentioned in the fax; 10 it would be concluded that the purpose, or one of the purposes, of 11 the fax is: 12 (d) to offer to supply goods or services; or 13 (e) to advertise or promote goods or services; or 14 (f) to advertise or promote a supplier, or prospective supplier, of 15 goods or services; or 16 (g) to offer to supply land or an interest in land; or 17 (h) to advertise or promote land or an interest in land; or 18 (i) to advertise or promote a supplier, or prospective supplier, of 19 land or an interest in land; or 20 (j) to offer to provide a business opportunity or investment 21 opportunity; or 22 (k) to advertise or promote a business opportunity or investment 23 opportunity; or 24 (l) to advertise or promote a provider, or prospective provider, 25 of a business opportunity or investment opportunity; or 26 (m) to solicit donations; or 27 (n) a purpose specified in the regulations. 28 (2) For the purposes of paragraphs (1)(d) to (l), it is immaterial 29 whether the goods, services, land, interest or opportunity exists. 30 (3) For the purposes of paragraphs (1)(d) to (l), it is immaterial 31 whether it is lawful to acquire the goods, services, land or interest 32 or take up the opportunity. 33 (4) Either of the following: Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 7 [Page Break] Part 1 Amendment of the Do Not Call Register Act 2006 1 (a) the supplier or prospective supplier mentioned in 2 paragraph (1)(f) or (i); 3 (b) the provider or prospective provider mentioned in 4 paragraph (1)(l); 5 may be the individual or organisation who sent the fax or 6 authorised the sending of the fax. 7 (5) Paragraphs (1)(d) to (n) are to be read independently of each other. 8 (6) Subsection (1) has effect subject to subsection (7). 9 Excluded faxes--regulations 10 (7) The regulations may provide that a specified kind of fax is not a 11 marketing fax for the purposes of this Act. 12 5C Industry classification 13 (1) The ACMA may, by legislative instrument, determine that an 14 activity ascertained in accordance with the determination is an 15 industry classification for the purposes of this Act. 16 Note: See also section 589 of the Telecommunications Act 1997 (instruments 17 may provide for matters by reference to other instruments). 18 (2) The ACMA must ensure that a determination is in force under 19 subsection (1) at all times after the commencement of this section. 20 23 Paragraphs 11(2)(a) and (b) 21 Omit "telephone". 22 24 Paragraph 11(3)(b) 23 Repeal the paragraph, substitute: 24 (b) during the 30-day period ending at the end of the day on 25 which the call was made: 26 (i) the person received information under paragraph 27 19(2)(d) in response to the submission of the list, but 28 that information did not state that the number was 29 registered on the Do Not Call Register; or 30 (ii) the person received information under paragraph 31 19(2)(e) in response to the submission of the list, but 32 that information did not state that the number was 33 registered on the Do Not Call Register; or 8 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 [Page Break] Amendment of the Do Not Call Register Act 2006 Part 1 1 (iii) the person was informed under paragraph 19(2)(f), in 2 response to the submission of the list, that the number 3 was not registered on the Do Not Call Register; or 4 (iv) under paragraph 19(2)(g), in response to the submission 5 of the list, the person was given a list that included the 6 number. 7 25 Subsection 11(3) 8 Omit "telephone", substitute "Australian". 9 26 After subsection 11(3) 10 Insert: 11 (3A) Subsection (1) does not apply if: 12 (a) the number was included on a list that was submitted by the 13 person under subsection 19(1); and 14 (b) during the 30-day period ending at the end of the day on 15 which the call was made, the person received information 16 under paragraph 19(2)(d) in response to the submission of the 17 list, and that information stated: 18 (i) that the number was registered on the Do Not Call 19 Register; and 20 (ii) that a consent for that number was registered on the Do 21 Not Call Register in relation to telemarketing calls about 22 an activity covered by a particular industry 23 classification; and 24 (c) the call was about an activity covered by the industry 25 classification. 26 For the purposes of this subsection, a list may consist of a single 27 Australian number. 28 Note: Section 19 deals with access to the Do Not Call Register. 29 27 Subsection 11(6) 30 After "(3),", insert "(3A),". 31 28 Paragraph 12(1)(b) 32 Omit "telephone numbers that, under section 14, are eligible to be 33 entered on the Do Not Call Register", substitute "Australian numbers". 34 29 After Part 2 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 9 [Page Break] Part 1 Amendment of the Do Not Call Register Act 2006 1 Insert: 2 Part 2A--Rules about sending marketing faxes 3 4 12A Simplified outline 5 The following is a simplified outline of this Part: 6 · Unsolicited marketing faxes must not be sent to a number 7 registered on the Do Not Call Register. 8 · Agreements for the sending of marketing faxes must require 9 compliance with this Act. 10 12B Unsolicited marketing faxes must not be sent to a number 11 registered on the Do Not Call Register 12 (1) A person must not send, or cause to be sent, a marketing fax to an 13 Australian number if: 14 (a) the number is registered on the Do Not Call Register; and 15 (b) the fax is not a designated marketing fax. 16 Note: For designated marketing fax, see Schedule 1A. 17 (2) Subsection (1) does not apply if: 18 (a) the relevant account-holder; or 19 (b) a nominee of the relevant account-holder; 20 consented to the sending of the fax. 21 Note 1: For the meaning of consent, see Schedule 2. 22 Note 2: For the meaning of nominee, see section 39. 23 (3) Subsection (1) does not apply if: 24 (a) the number was included on a list that was submitted by the 25 person under subsection 19(1); and 26 (b) during the 30-day period ending at the end of the day on 27 which the fax was sent: 28 (i) the person received information under paragraph 29 19(2)(d) in response to the submission of the list, but 10 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 [Page Break] Amendment of the Do Not Call Register Act 2006 Part 1 1 that information did not state that the number was 2 registered on the Do Not Call Register; or 3 (ii) the person received information under paragraph 4 19(2)(e) in response to the submission of the list, but 5 that information did not state that the number was 6 registered on the Do Not Call Register; or 7 (iii) the person was informed under paragraph 19(2)(f), in 8 response to the submission of the list, that the number 9 was not registered on the Do Not Call Register; or 10 (iv) under paragraph 19(2)(g), in response to the submission 11 of the list, the person was given a list that included the 12 number. 13 For the purposes of this subsection, a list may consist of a single 14 Australian number. 15 Note: Section 19 deals with access to the Do Not Call Register. 16 (4) Subsection (1) does not apply if: 17 (a) the number was included on a list that was submitted by the 18 person under subsection 19(1); and 19 (b) during the 30-day period ending at the end of the day on 20 which the fax was sent, the person received information 21 under paragraph 19(2)(d) in response to the submission of the 22 list, and that information stated: 23 (i) that the number was registered on the Do Not Call 24 Register; and 25 (ii) that a consent for that number was registered on the Do 26 Not Call Register in relation to marketing faxes about 27 an activity covered by a particular industry 28 classification; and 29 (c) the fax was about an activity covered by the industry 30 classification. 31 For the purposes of this subsection, a list may consist of a single 32 Australian number. 33 Note: Section 19 deals with access to the Do Not Call Register. 34 (5) Subsection (1) does not apply if the person sent the fax, or caused 35 the fax to be sent, by mistake. 36 (6) Subsection (1) does not apply if the person took reasonable 37 precautions, and exercised due diligence, to avoid the 38 contravention. Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 11 [Page Break] Part 1 Amendment of the Do Not Call Register Act 2006 1 (7) A person who wishes to rely on subsection (2), (3), (4), (5) or (6) 2 bears an evidential burden in relation to that matter. 3 Ancillary contraventions 4 (8) A person must not: 5 (a) aid, abet, counsel or procure a contravention of 6 subsection (1); or 7 (b) induce, whether by threats or promises or otherwise, a 8 contravention of subsection (1); or 9 (c) be in any way, directly or indirectly, knowingly concerned in, 10 or party to, a contravention of subsection (1); or 11 (d) conspire with others to effect a contravention of 12 subsection (1). 13 Civil penalty provisions 14 (9) Subsections (1) and (8) are civil penalty provisions. 15 Note: Part 4 provides for pecuniary penalties for breaches of civil penalty 16 provisions. 17 Extended meaning of cause 18 (10) For the purposes of this section, if: 19 (a) a person (the first person) enters into a contract or 20 arrangement, or arrives at an understanding, with another 21 person; and 22 (b) under the contract, arrangement or understanding, the other 23 person undertakes to send, or to cause any or all of the 24 employees or agents of the other person to send, marketing 25 faxes; and 26 (c) the other person, or an employee or agent of the other person, 27 gives effect to the contract, arrangement or understanding by 28 sending a marketing fax; 29 the first person is taken to have caused the marketing fax to be 30 sent. 31 (11) Paragraph (10)(a) applies to contracts or arrangements entered into, 32 or understandings arrived at, before, at or after the commencement 33 of this section. 12 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 [Page Break] Amendment of the Do Not Call Register Act 2006 Part 1 1 12C Agreements for the sending of marketing faxes must require 2 compliance with this Act 3 (1) A person (the first person) must not enter into a contract or 4 arrangement, or arrive at an understanding, with another person, if: 5 (a) under the contract, arrangement or understanding, the other 6 person undertakes to: 7 (i) send marketing faxes; or 8 (ii) cause any or all of the employees or agents of the other 9 person to send marketing faxes; and 10 (b) there is a reasonable likelihood that some or all of those faxes 11 will be sent to Australian numbers; and 12 (c) the contract, arrangement or understanding does not contain 13 an express provision to the effect that the other person will: 14 (i) in any case--comply with this Act; and 15 (ii) if subparagraph (a)(ii) applies--take all reasonable steps 16 to ensure that the employees and agents of the other 17 person comply with this Act; 18 in relation to the sending of marketing faxes covered by the 19 contract, arrangement or understanding. 20 Ancillary contraventions 21 (2) A person must not: 22 (a) aid, abet, counsel or procure a contravention of 23 subsection (1); or 24 (b) induce, whether by threats or promises or otherwise, a 25 contravention of subsection (1); or 26 (c) be in any way, directly or indirectly, knowingly concerned in, 27 or party to, a contravention of subsection (1); or 28 (d) conspire with others to effect a contravention of 29 subsection (1). 30 Civil penalty provisions 31 (3) Subsections (1) and (2) are civil penalty provisions. 32 Note: Part 4 provides for pecuniary penalties for breaches of civil penalty 33 provisions. Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 13 [Page Break] Part 1 Amendment of the Do Not Call Register Act 2006 1 Validity of contracts, arrangements or understandings 2 (4) A failure to comply with subsection (1) does not affect the validity 3 of any contract, arrangement or understanding. 4 30 Subsection 13(1) 5 Omit "telephone", substitute "Australian". 6 31 Subsection 13(1) 7 After "numbers", insert ", and related consents,". 8 32 Subsection 13(6) 9 Repeal the subsection, substitute: 10 (6) For the purposes of the Privacy Act 1988, the primary purpose of 11 the Do Not Call Register is to facilitate: 12 (a) the prohibition, under section 11, of unsolicited telemarketing 13 calls (other than designated telemarketing calls); and 14 (b) the prohibition, under section 12B, of unsolicited marketing 15 faxes (other than designated marketing faxes). 16 33 Section 14 17 Repeal the section. 18 34 Section 15 19 Before "An application for", insert "(1)". 20 35 Section 15 21 Omit "a telephone", substitute "an Australian". 22 36 Subparagraphs 15(a)(i) and (ii) 23 Omit "telephone". 24 37 After paragraph 15(b) 25 Insert: 26 (ba) may state that the applicant: 27 (i) consents to the making of telemarketing calls to the 28 number if such a call is about an activity covered by a 29 specified industry classification; and 14 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 [Page Break] Amendment of the Do Not Call Register Act 2006 Part 1 1 (ii) wishes to have that consent entered on the Do Not Call 2 Register; and 3 (bb) may state that the applicant: 4 (i) consents to the sending of marketing faxes to the 5 number if such a fax is about an activity covered by a 6 specified industry classification; and 7 (ii) wishes to have that consent entered on the Do Not Call 8 Register; and 9 38 At the end of section 15 10 Add: 11 (2) An application may be made even if the number is already entered 12 on the Do Not Call Register. 13 Note 1: If there are no registered consents for a number, subsection (2) enables 14 an application for the re-registration of the number: 15 (a) with one or more consents; or 16 (b) without any consents. 17 Note 2: If there are registered consents for a number, subsection (2) enables an 18 application for the re-registration of the number: 19 (a) with a replacement set of consents; or 20 (b) without any consents. 21 Note 3: See also paragraph 16(f). 22 (3) An application may set out 2 or more consents under 23 paragraph (1)(ba). 24 (4) An application may set out 2 or more consents under 25 paragraph (1)(bb). 26 39 Section 16 27 Repeal the section, substitute: 28 16 Registration 29 If an application is made under section 15 for an Australian 30 number to be entered on the Do Not Call Register, then: 31 (a) if the Do Not Call Register is kept by the ACMA--the 32 ACMA; or Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 15 [Page Break] Part 1 Amendment of the Do Not Call Register Act 2006 1 (b) if the Do Not Call Register is kept by the contracted service 2 provider--the contracted service provider on behalf of the 3 ACMA; 4 must: 5 (c) enter the number on the Do Not Call Register; and 6 (d) if the application stated that the applicant: 7 (i) consents to the making of telemarketing calls to the 8 number if such a call is about an activity covered by a 9 specified industry classification; and 10 (ii) wishes to have that consent entered on the Do Not Call 11 Register; 12 enter that consent on the Do Not Call Register; and 13 (e) if the application stated that the applicant: 14 (i) consents to the sending of marketing faxes to the 15 number if such a fax is about an activity covered by a 16 specified industry classification; and 17 (ii) wishes to have that consent entered on the Do Not Call 18 Register; 19 enter that consent on the Do Not Call Register; and 20 (f) if the application was made when the number was already 21 entered on the Do Not Call Register--immediately before 22 taking action under paragraph (c), (d) or (e), remove from the 23 Do Not Call Register: 24 (i) the previous entry of the number; and 25 (ii) any previous entries of consents for the number. 26 40 Subsection 17(1) 27 Omit "a telephone", substitute "an Australian". 28 41 Subsection 17(1) 29 After "number", insert "or a consent". 30 42 Paragraph 17(1)(b) 31 Repeal the paragraph, substitute: 32 (b) remains in force for 3 years, unless sooner removed from the 33 Do Not Call Register: 34 (i) under paragraph 16(f); or 16 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 [Page Break] Amendment of the Do Not Call Register Act 2006 Part 1 1 (ii) in accordance with a determination under subsection 2 18(1). 3 43 Subsection 17(2) 4 Omit "a telephone", substitute "an Australian". 5 44 Subsection 17(2) 6 After "number" (first occurring), insert "or a consent". 7 45 Subsection 17(2) 8 After "the number", insert "or consent". 9 46 Subsection 17(3) 10 Omit "a telephone", substitute "an Australian". 11 47 Subsection 17(3) 12 After "number" (first occurring), insert "or a consent". 13 48 Subsection 17(3) 14 After "the number", insert "or consent". 15 49 Paragraph 18(1)(a) 16 Omit "telephone", substitute "Australian". 17 50 Subsection 19(1) 18 Omit "telephone" (wherever occurring), substitute "Australian". 19 51 Paragraph 19(2)(c) 20 Omit "telephone" (wherever occurring), substitute "Australian". 21 52 Paragraph 19(2)(d) 22 Repeal the paragraph, substitute: 23 (d) if the access-seeker requests the ACMA or the contracted 24 service provider, as the case may be, to do so--inform the 25 access-seeker: 26 (i) which numbers (if any) on the access-seeker's list are 27 registered on the Do Not Call Register; and Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 17 [Page Break] Part 1 Amendment of the Do Not Call Register Act 2006 1 (ii) if any consents for numbers on the access-seeker's list 2 are registered on the Do Not Call Register--of those 3 consents; and 4 (e) if the access-seeker requests the ACMA or the contracted 5 service provider, as the case may be, to do so--inform the 6 access-seeker which numbers (if any) on the access-seeker's 7 list are registered on the Do Not Call Register; and 8 (f) if the access-seeker requests the ACMA or the contracted 9 service provider, as the case may be, to do so--inform the 10 access-seeker which numbers (if any) on the access-seeker's 11 list are not registered on the Do Not Call Register; and 12 (g) if the access-seeker requests the ACMA or the contracted 13 service provider, as the case may be, to do so--return the 14 access-seeker's list, modified by the deletion of the numbers 15 (if any) registered on the Do Not Call Register. 16 53 Subsection 19(3) 17 Repeal the subsection. 18 54 Paragraph 20(1)(b) 19 Omit "19(2)(d)", substitute "19(2)(d), (e) or (f)". 20 55 Paragraph 20(1)(c) 21 Omit "subsection 19(3)", substitute "paragraph 19(2)(g)". 22 56 Paragraph 21(1)(a) 23 Omit "or (3)". 24 57 Subsections 21(2), (3) and (7) 25 Omit "or (3)". 26 58 Subsections 25(1), (3), (4), (5) and (6) 27 After "11(1) or (7)" (wherever occurring), insert "or 12B(1) or (8)". 28 59 After subsection 30(2) 29 Insert: 30 (2A) In determining whether a person (the victim) has suffered loss or 31 damage as a result of one or more contraventions by another 32 person of section 12B in relation to the sending of one or more 18 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 [Page Break] Amendment of the Do Not Call Register Act 2006 Part 1 1 marketing faxes, and in assessing the amount of compensation 2 payable, the court may have regard to the following: 3 (a) the extent to which any expenses incurred by the victim are 4 attributable to dealing with the faxes; 5 (b) the effect of dealing with the faxes on the victim's ability to 6 carry on business or other activities; 7 (c) any damage to the reputation of the victim's business that is 8 attributable to dealing with the faxes; 9 (d) any loss of business opportunities suffered by the victim as a 10 result of dealing with the faxes; 11 (e) any other matters that the court considers relevant. 12 60 Subsection 39(1) 13 Omit "a telephone", substitute "an Australian". 14 Note: The heading to subsection 39(1) is altered by omitting "telephone". 15 61 Subsection 39(1) 16 Omit "relevant telephone" (wherever occurring), substitute "relevant". 17 62 Subsection 39(3) 18 Omit "telephone", substitute "Australian". 19 63 Subsection 39(4) 20 Omit "a telephone", substitute "an Australian". 21 64 Subsection 39(4) 22 Omit "relevant telephone", substitute "relevant". 23 65 At the end of section 39 24 Add: 25 Principles of agency not limited 26 (5) References in this Act to a nominee do not, by implication, limit 27 the application of the principles of agency to a matter arising under 28 this Act. 29 66 Paragraphs 41(a), (b) and (c) Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 19 [Page Break] Part 1 Amendment of the Do Not Call Register Act 2006 1 After "unsolicited telemarketing calls", insert "and unsolicited 2 marketing faxes". 3 67 At the end of subsection 44(1) 4 Add "or marketing faxes". 5 68 Paragraph 4(1)(b) of Schedule 1 6 Omit "telephone". 7 Note: The heading to subclause 4(1) of Schedule 1 is altered by omitting "telephone". 8 69 Subparagraph 4(1)(c)(i) of Schedule 1 9 Omit "telephone". 10 70 Paragraph 4(2)(b) of Schedule 1 11 Omit "telephone". 12 Note: The heading to subclause 4(2) of Schedule 1 is altered by omitting "telephone". 13 71 After Schedule 1 14 Insert: 15 Schedule 1A--Designated marketing faxes 16 Note: See section 4. 17 18 19 1 Object 20 The object of this Schedule is to define the expression designated 21 marketing fax. 22 Note: Designated marketing faxes are exempt from section 12B (unsolicited 23 marketing faxes must not be sent to a number registered on the Do Not 24 Call Register). 25 2 Government bodies, religious organisations and charities 26 For the purposes of this Act, a marketing fax is a designated 27 marketing fax if: 28 (a) the sending of the fax is authorised by any of the following 29 bodies: 20 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 [Page Break] Amendment of the Do Not Call Register Act 2006 Part 1 1 (i) a government body; 2 (ii) a religious organisation; 3 (iii) a charity or charitable institution; and 4 (b) if the fax relates to goods or services--the body is the 5 supplier, or prospective supplier, of the goods or services; 6 and 7 (c) the fax is not of a kind specified in the regulations. 8 3 Political parties, independent members of parliament, candidates 9 etc. 10 Political parties 11 (1) For the purposes of this Act, a marketing fax is a designated 12 marketing fax if: 13 (a) the sending of the fax is authorised by a registered political 14 party; and 15 (b) having regard to: 16 (i) the content of the fax; and 17 (ii) the presentational aspects of the fax; 18 it would be concluded that the purpose, or one of the 19 purposes, of the fax is: 20 (iii) to conduct fund-raising for electoral purposes; or 21 (iv) to conduct fund-raising for political purposes; and 22 (c) if the fax relates to goods or services--the registered political 23 party is the supplier, or prospective supplier, of the goods or 24 services; and 25 (d) the fax is not of a kind specified in the regulations. 26 Independent members of parliament etc. 27 (2) For the purposes of this Act, a marketing fax is a designated 28 marketing fax if: 29 (a) the sending of the fax is authorised by a person who is a 30 member of: 31 (i) the Parliament of the Commonwealth; or 32 (ii) the parliament of a State; or 33 (iii) the Legislative Assembly for the Australian Capital 34 Territory; or Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 21 [Page Break] Part 1 Amendment of the Do Not Call Register Act 2006 1 (iv) the Legislative Assembly of the Northern Territory; or 2 (v) the Legislative Assembly of Norfolk Island; or 3 (vi) a local governing body established by or under a law of 4 a State or a Territory; 5 and who is not affiliated with any registered political party; 6 and 7 (b) having regard to: 8 (i) the content of the fax; and 9 (ii) the presentational aspects of the fax; 10 it would be concluded that the purpose, or one of the 11 purposes, of the fax is: 12 (iii) to conduct fund-raising for electoral purposes; or 13 (iv) to conduct fund-raising for political purposes; and 14 (c) if the fax relates to goods or services--the person is the 15 supplier, or prospective supplier, of the goods or services; 16 and 17 (d) the fax is not of a kind specified in the regulations. 18 Candidates 19 (3) For the purposes of this Act, a marketing fax is a designated 20 marketing fax if: 21 (a) the sending of the fax is authorised by a person who is a 22 candidate in an election for: 23 (i) the House of Representatives; or 24 (ii) the Senate; or 25 (iii) a house of the parliament of a State; or 26 (iv) the Legislative Assembly for the Australian Capital 27 Territory; or 28 (v) the Legislative Assembly of the Northern Territory; or 29 (vi) the Legislative Assembly of Norfolk Island; or 30 (vii) a local governing body established by or under a law of 31 a State or a Territory; and 32 (b) having regard to: 33 (i) the content of the fax; and 34 (ii) the presentational aspects of the fax; 35 it would be concluded that the purpose, or one of the 36 purposes, of the fax is: 22 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 [Page Break] Amendment of the Do Not Call Register Act 2006 Part 1 1 (iii) to conduct fund-raising for electoral purposes; or 2 (iv) to conduct fund-raising for political purposes; and 3 (c) if the fax relates to goods or services--the person is the 4 supplier, or prospective supplier, of the goods or services; 5 and 6 (d) the fax is not of a kind specified in the regulations. 7 4 Educational institutions 8 Relevant account-holder is a householder 9 (1) For the purposes of this Act, a marketing fax is a designated 10 marketing fax if: 11 (a) the sending of the fax is authorised by an educational 12 institution; and 13 (b) the fax is sent to a number that is used or maintained 14 primarily for the private or domestic purposes of the relevant 15 account-holder and/or members of the relevant 16 account-holder's household; and 17 (c) either or both of the following subparagraphs apply: 18 (i) the relevant account-holder is, or has been, enrolled as a 19 student in that institution; 20 (ii) a member or former member of the relevant 21 account-holder's household is, or has been, enrolled as a 22 student in that institution; and 23 (d) if the fax relates to goods or services--the institution is the 24 supplier, or prospective supplier, of the goods or services; 25 and 26 (e) the fax is not of a kind specified in the regulations. 27 Relevant account-holder is an employer 28 (2) For the purposes of this Act, a marketing fax is a designated 29 marketing fax if: 30 (a) the sending of the fax is authorised by an educational 31 institution; and 32 (b) the relevant account-holder is the employer of an employee; 33 and Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 23 [Page Break] Part 1 Amendment of the Do Not Call Register Act 2006 1 (c) the fax is sent to a number that is used or maintained 2 primarily for the private or domestic purposes of the 3 employee and/or members of the employee's household; and 4 (d) either or both of the following subparagraphs apply: 5 (i) the employee is, or has been, enrolled as a student in 6 that institution; 7 (ii) a member or former member of the employee's 8 household is, or has been, enrolled as a student in that 9 institution; and 10 (e) if the fax relates to goods or services--the institution is the 11 supplier, or prospective supplier, of the goods or services; 12 and 13 (f) the fax is not of a kind specified in the regulations. 14 Note: Clause 7 provides for an extended meaning of employee and 15 employer. 16 5 Regulations 17 The regulations may provide that a specified kind of marketing fax 18 is a designated marketing fax for the purposes of this Act. 19 6 Authorising the sending of marketing faxes 20 Attribution of authorisation to organisation 21 (1) For the purposes of this Schedule (including subclause (2)), if: 22 (a) an individual authorises the sending of a marketing fax; and 23 (b) the individual does so on behalf of an organisation; 24 then: 25 (c) the organisation is taken to authorise the sending of the fax; 26 and 27 (d) the individual is taken not to authorise the sending of the fax. 28 Self-authorisation 29 (2) For the purposes of this Schedule, if: 30 (a) a marketing fax is sent by an individual or organisation; and 31 (b) the sending of the fax is not authorised by any other 32 individual or organisation; 24 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 [Page Break] Amendment of the Do Not Call Register Act 2006 Part 1 1 the first-mentioned individual or organisation is taken to authorise 2 the sending of the fax. 3 7 Extended meaning of employee and employer 4 Member of the executive body of a body corporate 5 (1) For the purposes of clause 4, if an individual is a member of the 6 executive body (whether described as the board of directors or 7 otherwise) of a body corporate, the individual is taken to be an 8 employee of the body corporate. 9 Contractor 10 (2) For the purposes of clause 4, if an individual works under a 11 contract that is wholly or principally for the labour of the 12 individual, the individual is taken to be an employee of the other 13 party to the contract. 14 Member of parliament 15 (3) For the purposes of clause 4, if an individual is a member of the 16 Parliament of the Commonwealth, the individual is taken to be an 17 employee of the Commonwealth. 18 (4) For the purposes of clause 4, if an individual is a member of the 19 parliament of a State, the individual is taken to be an employee of 20 the State. 21 (5) For the purposes of clause 4, if an individual is a member of the 22 Legislative Assembly for the Australian Capital Territory, the 23 individual is taken to be an employee of the Australian Capital 24 Territory. 25 (6) For the purposes of clause 4, if an individual is a member of the 26 Legislative Assembly of the Northern Territory, the individual is 27 taken to be an employee of the Northern Territory. 28 (7) For the purposes of clause 4, if an individual is a member of the 29 Legislative Assembly of Norfolk Island, the individual is taken to 30 be an employee of Norfolk Island. Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 25 [Page Break] Part 1 Amendment of the Do Not Call Register Act 2006 1 Member of local governing body 2 (8) For the purposes of clause 4, if an individual is a member of a local 3 governing body established by or under a law of a State or 4 Territory, the individual is taken to be an employee of that body. 5 Officeholder etc. 6 (9) For the purposes of clause 4, if an individual: 7 (a) holds, or performs the duties of, an appointment, office or 8 position under the Constitution or under a law of the 9 Commonwealth, of a State or of a Territory; or 10 (b) is otherwise in the service of the Commonwealth, of a State 11 or of a Territory (including service as a member of the 12 Defence Force or as a member of a police force); 13 the individual is taken to be an employee of the Commonwealth, 14 the State or the Territory, as the case requires. 15 72 At the end of clause 1 of Schedule 2 (before the note) 16 Add "or the sending of a marketing fax". 17 73 Clause 1 of Schedule 2 (at the end of the note) 18 Add "and section 12B (unsolicited marketing faxes must not be sent to a 19 number registered on the Do Not Call Register)". 20 74 After paragraph 2(a) of Schedule 2 21 Insert: 22 (aa) registered consent; or 23 75 At the end of clause 2 of Schedule 2 24 Add: 25 Note: Express consent does not include registered consent--see the 26 definition of express consent in section 4. 27 76 After clause 3 of Schedule 2 28 Insert: 29 3A Duration of registered consent 30 (1) A registered consent cannot be withdrawn. 26 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 [Page Break] Amendment of the Do Not Call Register Act 2006 Part 1 1 (2) Subclause (1) does not prevent the entry of the consent from being 2 removed from the Do Not Call Register: 3 (a) under paragraph 16(f); or 4 (b) in accordance with a determination under subsection 18(1). 5 77 Clause 4 of Schedule 2 6 Omit "a telephone", substitute "an Australian". 7 Note: The heading to clause 4 of Schedule 2 is altered by omitting "a telephone" and 8 substituting "an Australian". 9 78 Paragraphs 4(a) and (b) of Schedule 2 10 Omit "telephone". 11 79 Clause 4 of Schedule 2 12 Omit "the telephone number", substitute "the number". 13 80 Subclause 5(1) of Schedule 2 14 Omit "a telephone", substitute "an Australian". 15 81 Paragraphs 5(1)(a) and (b) of Schedule 2 16 Omit "telephone". 17 82 Subclause 5(2) of Schedule 2 18 Omit "a telephone", substitute "an Australian". 19 83 Paragraphs 5(2)(a) and (b) of Schedule 2 20 Omit "telephone". 21 84 At the end of Schedule 2 22 Add: 23 6 Determinations about consent--telemarketing calls made to 24 business numbers 25 (1) The ACMA may, by legislative instrument, determine that, for the 26 purposes of the application of this Act to a telemarketing call made 27 to a business number, the consent of the relevant account-holder 28 may not be inferred in the circumstances specified in the 29 determination. Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 27 [Page Break] Part 1 Amendment of the Do Not Call Register Act 2006 1 (2) The ACMA may, by legislative instrument, determine that, for the 2 purposes of the application of this Act to a telemarketing call made 3 to a business number, the consent of the relevant account-holder 4 may be inferred in the circumstances specified in the 5 determination. 6 (3) Before making a determination under subclause (1) or (2), the 7 ACMA must consult the Minister. 8 (4) Before making a determination under subclause (1) or (2), the 9 ACMA must: 10 (a) publish on its website a notice: 11 (i) setting out a draft of the determination; and 12 (ii) inviting persons to make submissions to the ACMA 13 about the draft determination within 14 days after the 14 notice is published; and 15 (b) consider any submissions received within the 14-day period. 16 (5) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a 17 power conferred on the ACMA by subclause (1) or (2). However, 18 if a variation of a determination under subclause (1) or (2) is a 19 variation of a minor nature, the ACMA is not required to comply 20 with subclause (3) or (4) in relation to the variation. 21 (6) If a determination under subclause (1) or (2) of this clause is 22 inconsistent with regulations made for the purposes of clause 5, the 23 determination has no effect to the extent of the inconsistency. 24 7 Determinations about consent--marketing faxes sent to business 25 numbers 26 (1) The ACMA may, by legislative instrument, determine that, for the 27 purposes of the application of this Act to a marketing fax sent to a 28 business number, the consent of the relevant account-holder may 29 not be inferred in the circumstances specified in the determination. 30 (2) The ACMA may, by legislative instrument, determine that, for the 31 purposes of the application of this Act to a marketing fax sent to a 32 business number, the consent of the relevant account-holder may 33 be inferred in the circumstances specified in the determination. 34 (3) Before making a determination under subclause (1) or (2), the 35 ACMA must consult the Minister. 28 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 [Page Break] Amendment of the Do Not Call Register Act 2006 Part 1 1 (4) Before making a determination under subclause (1) or (2), the 2 ACMA must: 3 (a) publish on its website a notice: 4 (i) setting out a draft of the determination; and 5 (ii) inviting persons to make submissions to the ACMA 6 about the draft determination within 14 days after the 7 notice is published; and 8 (b) consider any submissions received within the 14-day period. 9 (5) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a 10 power conferred on the ACMA by subclause (1) or (2). However, 11 if a variation of a determination under subclause (1) or (2) is a 12 variation of a minor nature, the ACMA is not required to comply 13 with subclause (3) or (4) in relation to the variation. 14 (6) If a determination under subclause (1) or (2) of this clause is 15 inconsistent with regulations made for the purposes of clause 5, the 16 determination has no effect to the extent of the inconsistency. 17 85 After subclause 2(2) of Schedule 3 18 Insert: 19 (2A) Subclause (2) does not apply to a contravention of subsection 12(1) 20 or (2) or 12C(1) or (2). 21 Note 1: Section 12 deals with agreements for the making of telemarketing 22 calls. 23 Note 2: Section 12C deals with agreements for the sending of marketing faxes. 24 86 Subclause 4(1) of Schedule 3 (table items 1, 2, 3, 4, 5 and 25 6) 26 After "11(1) or (7)", insert "or 12B(1) or (8)". 27 87 Subclause 4(2) of Schedule 3 (table items 1, 2, 3, 4, 5 and 28 6) 29 After "11(1) or (7)", insert "or 12B(1) or (8)". 30 Division 2--Application 31 88 Application--agreements for the making of telemarketing 32 calls Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 29 [Page Break] Part 1 Amendment of the Do Not Call Register Act 2006 1 The amendment of paragraph 12(1)(b) of the Do Not Call Register Act 2 2006 made by this Part applies in relation to: 3 (a) a contract or arrangement entered into; or 4 (b) an understanding arrived at; 5 after the commencement of this item. 6 89 Application--continuity of the Do Not Call Register 7 The amendments of section 13 of the Do Not Call Register Act 2006 8 made by this Part do not affect the continuity of the Do Not Call 9 Register. 10 90 Application--registration of an Australian number 11 If: 12 (a) an application for an Australian number to be entered on the 13 Do Not Call Register was made before the commencement of 14 this item under section 15 of the Do Not Call Register Act 15 2006; and 16 (b) the application was pending immediately before that 17 commencement; 18 the application has effect as if it were an application made after that 19 commencement under section 15 of the Do Not Call Register Act 2006 20 as amended by this Part. 21 91 Application--access to the Do Not Call Register 22 Despite the following amendments made, and repeals effected, by this 23 Part: 24 (a) the repeal of paragraph 11(3)(b) of the Do Not Call Register 25 Act 2006; 26 (b) the repeal of paragraph 19(2)(d) of the Do Not Call Register 27 Act 2006; 28 (c) the repeal of subsection 19(3) of the Do Not Call Register Act 29 2006; 30 (d) the amendment of paragraph 20(1)(c) of the Do Not Call 31 Register Act 2006; 32 (e) the amendment of paragraph 20(1)(d) of the Do Not Call 33 Register Act 2006; 34 (f) the amendments of section 21 of the Do Not Call Register 35 Act 2006; 30 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 [Page Break] Amendment of the Do Not Call Register Act 2006 Part 1 1 those paragraphs, that subsection and that section continue to apply, in 2 relation to a list submitted under subsection 19(1) of the Do Not Call 3 Register Act 2006 before the commencement of this item, as if those 4 amendments had not been made and those repeals had not been 5 effected. 6 92 Application--continuity of a nomination 7 The amendments of subsections 39(1) and (3) of the Do Not Call 8 Register Act 2006 made by this Part do not affect the continuity of a 9 nomination in force under that section immediately before the 10 commencement of this item. 11 93 Application--principles of agency 12 Subsection 39(5) of the Do Not Call Register Act 2006 as amended by 13 this Part applies to a matter arising under that Act before, at or after the 14 commencement of this item. 15 94 Application--infringement notices 16 Subclause 2(2A) of Schedule 3 of the Do Not Call Register Act 2006 as 17 amended by this Part applies in relation to an alleged contravention that 18 occurs after the commencement of this item. 19 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 31 [Page Break] Part 2 Other amendments 1 Part 2--Other amendments 2 Telecommunications Act 1997 3 95 At the end of subsection 3(2) 4 Add: 5 ; (l) to promote responsible practices in relation to the sending of 6 marketing faxes. 7 96 Section 5 8 Omit "or the telemarketing industry" (wherever occurring), substitute ", 9 the telemarketing industry or the fax marketing industry". 10 97 Section 7 11 Insert: 12 fax marketing industry means an industry that involves carrying 13 on a fax marketing activity (as defined by section 109C). 14 98 Section 7 15 Insert: 16 marketing fax means: 17 (a) a marketing fax (within the meaning of the Do Not Call 18 Register Act 2006) that is sent to an Australian number; or 19 (b) a fax (within the meaning of the Do Not Call Register Act 20 2006) that is sent to an Australian number, where, having 21 regard to: 22 (i) the content of the fax; and 23 (ii) the presentational aspects of the fax; 24 it would be concluded that the purpose, or one of the 25 purposes, of the fax is: 26 (iii) to conduct opinion polling; or 27 (iv) to carry out standard questionnaire-based research. 28 99 Section 106 29 Omit "or the telemarketing industry" (wherever occurring), substitute ", 30 the telemarketing industry or the fax marketing industry". 32 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 [Page Break] Other amendments Part 2 1 100 After section 109B 2 Insert: 3 109C Fax marketing activity 4 (1) For the purposes of this Part, a fax marketing activity is an activity 5 to which subsection (2), (3) or (4) applies. 6 (2) This subsection applies to an activity that: 7 (a) is carried on by a person (the first person) under a contract or 8 arrangement (other than a contract of employment); and 9 (b) consists of: 10 (i) using marketing faxes to market, advertise or promote 11 goods or services, where the first person is not the 12 supplier or prospective supplier of the goods or services; 13 or 14 (ii) using marketing faxes to advertise or promote a supplier 15 or prospective supplier of goods or services, where the 16 first person is not the supplier or prospective supplier of 17 the goods or services; or 18 (iii) using marketing faxes to market, advertise or promote 19 land or interests in land, where the first person is not the 20 supplier or prospective supplier of the land or interests 21 in land; or 22 (iv) using marketing faxes to advertise or promote a supplier 23 or prospective supplier of land or interests in land, 24 where the first person is not the supplier or prospective 25 supplier of the land or interests in land; or 26 (v) using marketing faxes to market, advertise or promote 27 business opportunities or investment opportunities, 28 where the first person is not the provider or prospective 29 provider of the business opportunities or investment 30 opportunities; or 31 (vi) using marketing faxes to advertise or promote a 32 provider, or prospective provider, of business 33 opportunities or investment opportunities, where the 34 first person is not the provider or prospective provider 35 of the business opportunities or investment 36 opportunities. Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 33 [Page Break] Part 2 Other amendments 1 (3) This subsection applies to an activity carried on by a person if the 2 activity consists of: 3 (a) using marketing faxes to market, advertise or promote goods 4 or services, where the person is the supplier or prospective 5 supplier of the goods or services; or 6 (b) using marketing faxes to advertise or promote a supplier or 7 prospective supplier of goods or services, where the person is 8 the supplier or prospective supplier of the goods or services; 9 or 10 (c) using marketing faxes to market, advertise or promote land or 11 interests in land, where the person is the supplier or 12 prospective supplier of the land or interests in land; or 13 (d) using marketing faxes to advertise or promote a supplier or 14 prospective supplier of land or interests in land, where the 15 person is the supplier or prospective supplier of the land or 16 interests in land; or 17 (e) using marketing faxes to market, advertise or promote 18 business opportunities or investment opportunities, where the 19 person is the provider or prospective provider of the business 20 opportunities or investment opportunities; or 21 (f) using marketing faxes to advertise or promote a provider, or 22 prospective provider, of business opportunities or investment 23 opportunities, where the person is the provider or prospective 24 provider of the business opportunities or investment 25 opportunities. 26 (4) This subsection applies to an activity carried on by a person if the 27 activity consists of: 28 (a) using marketing faxes to solicit donations; or 29 (b) using marketing faxes to conduct opinion polling; or 30 (c) using marketing faxes to carry out standard 31 questionnaire-based research. 32 (5) An expression (other than marketing fax) used in this section and 33 in section 5B of the Do Not Call Register Act 2006 has the same 34 meaning in this section as it has in that section. 35 101 After section 110B 36 Insert: 34 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 [Page Break] Other amendments Part 2 1 110C Sections of the fax marketing industry 2 (1) For the purposes of this Part, sections of the fax marketing 3 industry are to be ascertained in accordance with this section. 4 (2) If no determination is in force under subsection (3), all of the 5 persons carrying on, or proposing to carry on, fax marketing 6 activities constitute a single section of the fax marketing industry 7 for the purposes of this Part. 8 (3) The ACMA may, by legislative instrument, determine that persons 9 carrying on, or proposing to carry on, one or more specified kinds 10 of fax marketing activity constitute a section of the fax marketing 11 industry for the purposes of this Part. 12 (4) The section must be identified in the determination by a unique 13 name and/or number. 14 (5) A determination under subsection (3) has effect accordingly. 15 (6) Sections of the fax marketing industry determined under 16 subsection (3): 17 (a) need not be mutually exclusive; and 18 (b) may consist of the aggregate of any 2 or more sections of the 19 fax marketing industry mentioned in subsection (2) or 20 determined under subsection (3); and 21 (c) may be subsets of a section of the fax marketing industry 22 mentioned in subsection (2) or determined under 23 subsection (3). 24 (7) Subsection (6) does not, by implication, limit subsection (3). 25 102 After section 111AA 26 Insert: 27 111AB Participants in a section of the fax marketing industry 28 For the purposes of this Part, if a person is a member of a group 29 that constitutes a section of the fax marketing industry, the person 30 is a participant in that section of the fax marketing industry. 31 103 After subsection 112(1B) 32 Insert: Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 35 [Page Break] Part 2 Other amendments 1 (1C) The Parliament intends that bodies or associations that the ACMA 2 is satisfied represent sections of the fax marketing industry should 3 develop codes (industry codes) that are to apply to participants in 4 the respective sections of the industry in relation to the fax 5 marketing activities of the participants. 6 104 Subsection 112(2) 7 Omit "and 125A", substitute ", 125A and 125B". 8 105 Subsection 112(2) 9 Omit "or the telemarketing industry", substitute ", the telemarketing 10 industry or the fax marketing industry". 11 106 After subsection 112(3C) 12 Insert: 13 (3D) In determining whether public interest considerations are being 14 addressed in a way that does not impose undue financial and 15 administrative burdens on participants in sections of the fax 16 marketing industry, the ACMA must have regard to: 17 (a) the number of persons who would be likely to benefit from 18 the code or standard concerned; and 19 (b) the extent to which those persons are householders or small 20 business operators; and 21 (c) the legitimate business interests of participants in sections of 22 the fax marketing industry. 23 107 Subsection 112(4) 24 Omit "and (3C)", substitute ", (3C) and (3D)". 25 108 Subsection 113(2) 26 Omit "or the telemarketing industry", substitute ", the telemarketing 27 industry or the fax marketing industry". 28 109 Paragraph 113(3)(y) 29 Omit "telephone", substitute "Australian". 30 110 At the end of subsection 113(3) 31 Add: 36 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 [Page Break] Other amendments Part 2 1 ; (z) record-keeping practices to be followed in relation to 2 marketing faxes sent or attempted to be sent; 3 (za) action to be taken to limit the total number of marketing 4 faxes sent or attempted to be sent, by a particular participant 5 in a section of the fax marketing industry, during a particular 6 period to a particular Australian number. 7 111 Paragraph 117(1)(a) 8 Omit "or the telemarketing industry", substitute ", the telemarketing 9 industry or the fax marketing industry". 10 112 Paragraph 117(1)(b) 11 Omit "or telemarketing activities", substitute ", telemarketing activities 12 or fax marketing activities". 13 113 Paragraph 117(1)(h) 14 Repeal the paragraph, substitute: 15 (h) except in a case where: 16 (i) the code applies to participants in a section of the 17 telemarketing industry and deals with one or more 18 matters relating to the telemarketing activities of those 19 participants; or 20 (ii) the code applies to participants in a section of the fax 21 marketing industry and deals with one or more matters 22 relating to the fax marketing activities of those 23 participants; 24 the ACMA is satisfied that the Telecommunications Industry 25 Ombudsman has been consulted about the development of 26 the code; and 27 114 Subparagraph 117(1)(k)(iii) 28 Omit "or the telemarketing industry", substitute ", the telemarketing 29 industry or the fax marketing industry". 30 115 Subsection 118(1) 31 Omit "or the telemarketing industry", substitute ", the telemarketing 32 industry or the fax marketing industry". 33 116 Paragraph 118(1)(a) Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 37 [Page Break] Part 2 Other amendments 1 Omit "or telemarketing activities", substitute ", telemarketing activities 2 or fax marketing activities". 3 117 Subsection 118(3) 4 Omit "or the telemarketing industry", substitute ", the telemarketing 5 industry or the fax marketing industry". 6 118 Paragraph 118(4A)(c) 7 Omit "or the telemarketing industry", substitute ", the telemarketing 8 industry or the fax marketing industry". 9 119 Subsection 119(1) 10 Omit "or the telemarketing industry", substitute ", the telemarketing 11 industry or the fax marketing industry". 12 Note: The heading to section 119 is altered by omitting "or the telemarketing industry" and 13 substituting ", the telemarketing industry or the fax marketing industry". 14 120 Paragraph 119(1)(b) 15 Omit "or telemarketing activities", substitute ", telemarketing activities 16 or fax marketing activities". 17 121 Paragraph 121(1)(a) 18 Omit "or the telemarketing industry", substitute ", the telemarketing 19 industry or the fax marketing industry". 20 122 Subsection 122(1) 21 Omit "or the telemarketing industry", substitute ", the telemarketing 22 industry or the fax marketing industry". 23 123 Subparagraph 123(1)(a)(i) 24 Omit "or the telemarketing industry", substitute ", the telemarketing 25 industry or the fax marketing industry". 26 124 Subparagraph 123(1)(a)(ii) 27 Omit "or telemarketing activities", substitute "telemarketing activities 28 or fax marketing activities". 29 125 Paragraph 124(1)(a) 38 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 [Page Break] Other amendments Part 2 1 Omit "or the telemarketing industry", substitute ", the telemarketing 2 industry or the fax marketing industry". 3 126 Subparagraph 124(1)(c)(ii) 4 Omit "or telemarketing activities", substitute ", telemarketing activities 5 or fax marketing activities". 6 127 Subparagraph 125(1)(a)(i) 7 Omit "or the telemarketing industry", substitute ", the telemarketing 8 industry or the fax marketing industry". 9 128 Subparagraph 125(1)(a)(ii) 10 Omit "or telemarketing activities", substitute ", telemarketing activities 11 or fax marketing activities". 12 129 Subsection 125(7) 13 Omit "or the telemarketing industry", substitute ", the telemarketing 14 industry or the fax marketing industry". 15 130 Subsection 125(7) 16 Omit "or telemarketing activities", substitute ", telemarketing activities 17 or fax marketing activities". 18 131 After section 125A 19 Insert: 20 125B ACMA must determine certain industry standards relating to 21 the fax marketing industry 22 (1) The ACMA may, by legislative instrument, determine a standard 23 that: 24 (a) applies to participants in each section of the fax marketing 25 industry; and 26 (b) deals with the following matters relating to the fax marketing 27 activities of those participants: 28 (i) restricting the hours and/or days during which 29 marketing faxes may be sent, or attempted to be sent, to 30 an Australian number; Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 39 [Page Break] Part 2 Other amendments 1 (ii) requiring that a marketing fax sent to an Australian 2 number must contain specified information about the 3 person who authorised the sending of the fax; 4 (iii) restricting the total number of marketing faxes sent, or 5 attempted to be sent, by the relevant participant during a 6 particular period to a particular Australian number; 7 (iv) requiring that, if a marketing fax sent to an Australian 8 number is authorised by a particular person (the 9 authorising person), the fax must contain information 10 about how the recipient of the fax may send a message 11 to the effect that the recipient does not want to receive 12 any marketing faxes authorised by the authorising 13 person. 14 Note: For variation and revocation, see subsection 33(3) of the Acts 15 Interpretation Act 1901. 16 (2) A standard under subsection (1) is to be known as an industry 17 standard. 18 (3) If the ACMA is satisfied that a body or association represents a 19 section of the fax marketing industry, the ACMA must consult the 20 body or association before determining a standard under 21 subsection (1). 22 (4) The ACMA must ensure that a standard is in force under 23 subsection (1) at all times after the commencement of this section. 24 (5) For the purposes of this section, authorise, when used in relation to 25 a marketing fax, has the same meaning as in the Do Not Call 26 Register Act 2006. 27 132 Subsection 128(1) 28 Omit "or the telemarketing industry", substitute ", the telemarketing 29 industry or the fax marketing industry". 30 133 Subsection 129(1) 31 Omit "or the telemarketing industry", substitute ", the telemarketing 32 industry or the fax marketing industry". 33 134 Subsection 130(1) 34 Omit "or the telemarketing industry", substitute ", the telemarketing 35 industry or the fax marketing industry". 40 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 [Page Break] Other amendments Part 2 1 135 Paragraphs 130(1)(a) and (b) 2 Omit "or telemarketing activities", substitute ", telemarketing activities 3 or fax marketing activities". 4 136 Subsection 133(1A) 5 After "125A", insert "or 125B". 6 137 Section 135A 7 After "125A", insert "or 125B". 8 138 Paragraphs 139(1)(a) and (b) 9 Omit "telemarketing activities", substitute "telemarketing activities or 10 fax marketing activities". 11 Note: The heading to section 139 is altered by inserting "or fax marketing activities" after 12 "telemarketing activities". 13 139 At the end of section 509 14 Add: 15 (7) If it appears to the ACMA that: 16 (a) a person (the first person) wishes to make a complaint about: 17 (i) a contravention of a code registered under Part 6, where 18 the code applies to participants in a section of the fax 19 marketing industry (within the meaning of Part 6) and 20 deals with one or more matters relating to the fax 21 marketing activities (within the meaning of Part 6) of 22 those participants; or 23 (ii) a contravention of section 128 in relation to an industry 24 standard, where the standard applies to participants in a 25 section of the fax marketing industry (within the 26 meaning of Part 6) and deals with one or more matters 27 relating to the fax marketing activities (within the 28 meaning of Part 6) of those participants; or 29 (iii) a contravention of the Do Not Call Register Act 2006 or 30 regulations under that Act; and 31 (b) the complaint relates to a marketing fax sent, or attempted to 32 be sent, to an Australian number; and 33 (c) the first person does not have sufficient information to 34 identify: Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 41 [Page Break] Part 2 Other amendments 1 (i) the person who sent, or attempted to send, the fax; or 2 (ii) the person who caused the fax to be sent or attempted; 3 and 4 (d) the first person gives the ACMA such information about the 5 fax as the ACMA requires; 6 it is the duty of the ACMA to take reasonable steps to assist the 7 first person to identify whichever of the following is applicable: 8 (e) the person who sent, or attempted to send, the fax; 9 (f) the person who caused the fax to be sent or attempted. 10 (8) Subsection (7) does not limit subsection (4). 11 140 After paragraph 515A(1)(b) 12 Insert: 13 (ba) a contravention of a code registered under Part 6, where the 14 code applies to participants in a section of the fax marketing 15 industry (within the meaning of Part 6) and deals with one or 16 more matters relating to the fax marketing activities (within 17 the meaning of Part 6) of those participants; 18 (bb) a contravention of section 128 in relation to an industry 19 standard, where the standard applies to participants in a 20 section of the fax marketing industry (within the meaning of 21 Part 6) and deals with one or more matters relating to the fax 22 marketing activities (within the meaning of Part 6) of those 23 participants; 42 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009