2004-2005 The Parliament of the Commonwealth of Australia HOUSE OF REPRESENTATIVES Presented and read a first time Telemarketing (Protection of Privacy Rights of Residential Telephone Subscribers) Bill 2005 No. , 2005 (Ms A. E. Burke) A Bill for an Act to protect residential telephone subscribers' right to avoid receiving telephone solicitations to which they object, and for related purposes [Page Break] Part 1--Preliminary 1 1 Short title ......................................................................................1 2 Commencement .............................................................................2 3 Purpose .........................................................................................2 4. Definitions.....................................................................................2 5 Crown to be bound.........................................................................3 Part 2--Establishment of `Do not call' register 5 6 Additional ACCC functions ...........................................................5 7 Prohibition on certain telephone solicitations .................................5 8 Prohibition on interference with a person's right to be placed on `Do not call' register ......................................................6 9 Prohibition on non-authorised use of `Do not call' register .............6 10 Circumstances under which seller or telemarketer not liable for violating certain offence provisions...........................................7 Part 3--Civil Penalties 8 11 Pecuniary penalties for contravention of civil penalty provisions ......................................................................................8 12 Civil action for recovery of pecuniary penalties ..............................9 13 Criminal proceedings not to be brought for contravention of civil penalty provisions ..................................................................9 14 Schedule 1 (infringement notices) ..................................................9 Part 4--Miscellaneous 10 15 Formal warnings--breach of civil penalty provisions ...................10 16 Operation of State and Territory laws...........................................10 17 Implied freedom of political communication.................................10 18 Administration of Act ..................................................................10 19 Regulations..................................................................................10 Schedule 1--Infringement notices 11 1 Object..........................................................................................11 2 Definitions...................................................................................11 3 When an infringement notice can be given ...................................11 4 Matters to be included in an infringement notice..........................12 5 Amount of penalty .......................................................................12 6 Withdrawal of an infringement notice ..........................................14 7 What happens if the penalty is paid..............................................14 8 Effects of this Schedule on civil proceedings ................................15 9 Appointment of authorised person................................................15 i Telemarketing (Protection of Privacy Rights of Residential Telephone Subscribers) Bill 2005 No. , 2005 [Page Break] No. , 2005 ii [Page Break] 1 subscribers' right to avoid receiving telephone 2 solicitations to which they object, and for related 3 purposes 4 The Parliament of Australia enacts: 5 Part 1--Preliminary 6 7 1 Short title 8 This Act may be cited as the Telemarketing (Protection of Privacy 9 Rights of Residential Telephone Subscribers) Act 2005. 10 Telemarketing (Protection of Privacy Rights of Residential Telephone Subscribers) Bill 2005 No. , 2005 1 [Page Break] Section 2 2 Commencement 1 This Act commences on the day on which it receives the Royal 2 Assent. 3 3 Purpose 4 The purpose of this Act is: 5 (a) to require the ACCC to establish and maintain a list of 6 telephone numbers of residential subscribers who request not 7 to receive telephone solicitations, and to make the list and 8 parts thereof available for purchase; 9 (b) to prohibit any person from making or causing to make a 10 telephone solicitation to the telephone number of any person 11 included in the list maintained by the ACCC; 12 (c) to prohibit any person from making or causing to make a 13 telephone solicitation to any person at any time on a Sunday 14 or on a public holiday, or between midnight and 9.00 am or 15 between 8.00 pm and midnight, on any other day. 16 4. Definitions 17 In this Act, unless the contrary intention appears: 18 ACCC means the Australian Competition and Consumer 19 Commission. 20 civil penalty provision means any of the following provisions: 21 (a) subsection 7(1) and (3); 22 (b) subsection 8(1); 23 (c) subsection 9(1). 24 `Do not call' register means the list of telephone numbers 25 established under section 6. 26 established business relationship means a relationship between a 27 seller and a consumer based on: 28 (a) the consumer's purchase, rental or lease of the seller's goods 29 or services or a financial transaction between the consumer 30 2 Telemarketing (Protection of Privacy Rights of Residential Telephone Subscribers) Bill 2005 No. , 2005 [Page Break] Section 5 and seller within the eighteen months immediately preceding 1 the date of a telemarketing call; or 2 (b) the consumer's inquiry or application regarding a product or 3 service offered by the seller within three months immediately 4 preceding the date of a telemarketing call. 5 organisation includes: 6 (a) a body corporate; and 7 (b) a partnership; and 8 (c) a government body; and 9 (d) a court or tribunal; and 10 (e) an unincorporated body or association. 11 Express references in this Act to organisations do not imply that 12 references in this Act to persons do not include bodies politic or 13 corporate. 14 Note: Paragraph 22(1)(a) of the Acts Interpretation Act 1901 provides that 15 person includes a body politic or corporate as well as an individual. 16 penalty unit has the meaning given by section 4AA of the Crimes 17 Act 1914. 18 person includes a partnership 19 telephone solicitation means the initiation of a telephone call or 20 message for the purpose of encouraging the purchase or rental of, or 21 investment in, property, goods or services, which is transmitted to 22 any person. 23 telemarketer means a person who engages in telemarketing. 24 telemarketing means a plan, program or campaign which is 25 conducted to induce purchase of goods or services by use of one or 26 more telephones and which involves one or more telephone calls. 27 5 Crown to be bound 28 (1) This Act binds the Crown in each of its capacities. 29 (2) This Act does not make the Crown liable to a pecuniary penalty or 30 to be prosecuted for an offence. 31 Telemarketing (Protection of Privacy Rights of Residential Telephone Subscribers) Bill 2005 No. , 2005 3 [Page Break] Section 5 (3) The protection in subsection (2) does not apply to an authority of 1 the Crown. 2 4 Telemarketing (Protection of Privacy Rights of Residential Telephone Subscribers) Bill 2005 No. , 2005 [Page Break] Section 6 Part 2--Establishment of `Do not call' register 1 6 Additional ACCC functions 2 The ACCC must: 3 (a) establish and maintain a list of telephone numbers of 4 residential subscribers who request not to receive telephone 5 solicitations; 6 (b) provide notice to subscribers of the establishment of the list; 7 (c) make the list and parts thereof available for purchase by 8 persons desiring to make or cause to be made telephone 9 solicitations; and 10 (d) protect the privacy rights of persons whose telephone numbers 11 are included in the list. 12 7 Prohibition on certain telephone solicitations 13 (1) A person must not make or cause to be made a telephone solicitation 14 to a person when that person's telephone number is included in the 15 `Do not call' register, unless the seller whose goods or services are 16 being offered: 17 (a) has obtained the express agreement, in writing, of such person 18 to place calls to that person; or 19 (b) has an established business relationship with the person, and 20 that person has not stated that he or she does not wish to 21 receive outbound telephone calls made by or on behalf of the 22 seller. 23 (2) The written agreement referred to in paragraph 1(a) shall clearly 24 evidence such person's authorisation that calls made by or on behalf 25 of the seller may be placed to that person, and shall include the 26 telephone number to which the calls may be placed and the 27 signature of that person. 28 (3) A person must not make or cause to be made a telephone solicitation 29 to a person: 30 (a) at any time on a public holiday; or 31 Telemarketing (Protection of Privacy Rights of Residential Telephone Subscribers) Bill 2005 No. , 2005 5 [Page Break] Section 8 (b) at any time on a Sunday; or 1 (c) on any other day: 2 (i) between midnight and 9.00 am; or 3 (ii) between 8.00 pm and midnight. 4 (4) The times referred to in subsection (3) are local time, at the time of 5 the person receiving the telephone call. 6 Civil penalty provisions 7 (5) Subsections (1) and (3) are civil penalty provisions. 8 Note: Part 3 provides for pecuniary penalties for breaches of civil penalty 9 provisions. 10 8 Prohibition on interference with a person's right to be placed on 11 `Do not call' register 12 (1) A person must not deny or interfere in any way, directly or 13 indirectly, with a person's right to have his or her telephone number 14 placed on the `Do not call' register. 15 Civil penalty provisions 16 (2) Subsection (1) is a civil penalty provision. 17 Note: Part 3 provides for pecuniary penalties for breaches of civil penalty 18 provisions. 19 9 Prohibition on non-authorised use of `Do not call' register 20 (1) A person must not sell, rent, lease, purchase or use the `Do not call' 21 register for any purpose except compliance with the provisions of 22 this Act. 23 Civil penalty provisions 24 (2) Subsection (1) is a civil penalty provision. 25 Note: Part 3 provides for pecuniary penalties for breaches of civil penalty 26 provisions. 27 6 Telemarketing (Protection of Privacy Rights of Residential Telephone Subscribers) Bill 2005 No. , 2005 [Page Break] Section 10 10 Circumstances under which seller or telemarketer not liable for 1 violating certain offence provisions 2 A seller or telemarketer will not be liable for violating subsection 7 3 (1) or (3) or 8 (1) if it can demonstrate that, as part of the seller's or 4 telemarketer's routine business practice: 5 (a) it has established and implemented written procedures to 6 comply with sections 7 and 8; 7 (b) it has trained its personnel, and any entity assisting in its 8 compliance, in the procedures referred to in paragraph (a); 9 (c) the seller or telemarketer uses a process to prevent 10 telemarketing to any telephone number on the `Do not call' 11 register employing a version of the register obtained from the 12 ACCC no more than three months prior to the date any call is 13 made, and maintains records documenting this process; 14 (d) the seller or telemarketer or another person acting on behalf of 15 the seller, monitors and enforces compliance with the 16 procedures established under paragraph (a); and 17 (e) any subsequent call otherwise violating subsection 7 (1) or (3) 18 or 8 (1) is the result of error. 19 20 Telemarketing (Protection of Privacy Rights of Residential Telephone Subscribers) Bill 2005 No. , 2005 7 [Page Break] Section 11 1 Part 3--Civil Penalties 2 11 Pecuniary penalties for contravention of civil penalty provisions 3 (1) If the Federal Court is satisfied that a person has contravened a civil 4 penalty provision, the Court may order the person to pay to the 5 Commonwealth such pecuniary penalty, in respect of each 6 contravention, as the Court determines to be appropriate. 7 (2) In determining the pecuniary penalty, the Court must have regard to 8 all relevant matters, including: 9 (a) the nature and extent of the contravention; 10 (b) the nature and extent of any loss or damage suffered as a 11 result of the contravention; 12 (c) the circumstances in which the contravention took place; 13 (d) whether the person has previously been found by the Court in 14 proceedings under this Act to have engaged in any similar 15 conduct. 16 (3) The pecuniary penalty payable under subsection (1) by a body 17 corporate in respect of a contravention of the civil penalty provision 18 must not exceed: 19 (a) if the civil penalty provision is subsection 7(1) or (3) or 20 8(1)--20 penalty units; or 21 (b) if the civil penalty provision is subsection 9(1)--40 penalty 22 units. 23 (4) The pecuniary penalty payable under subsection (1) by a person 24 other than a body corporate in respect of a contravention of the civil 25 penalty provision must not exceed: 26 (a) if the civil penalty provision is subsection 7(1) or (3) or 27 8(1)--5 penalty units; or 28 (b) if the civil penalty provision is subsection 9(1)--10 penalty 29 units. 30 8 Telemarketing (Protection of Privacy Rights of Residential Telephone Subscribers) Bill 2005 No. , 2005 [Page Break] Section 12 12 Civil action for recovery of pecuniary penalties 1 (1) The ACCC may institute a proceeding in the Federal Court for the 2 recovery on behalf of the Commonwealth of a pecuniary penalty 3 referred to in section 11. 4 (2) A proceeding under subsection (1) may be commenced within 6 5 years after the contravention. 6 (3) The Federal Court may direct that 2 or more proceedings under 7 subsection (1) are to be heard together. 8 13 Criminal proceedings not to be brought for contravention of civil 9 penalty provisions 10 Criminal proceedings do not lie against a person only because the 11 person has contravened a civil penalty provision. 12 14 Schedule 1 (infringement notices) 13 Schedule 1 has effect. 14 Telemarketing (Protection of Privacy Rights of Residential Telephone Subscribers) Bill 2005 No. , 2005 9 [Page Break] Section 15 Part 4--Miscellaneous 1 15 Formal warnings--breach of civil penalty provisions 2 The ACCC may issue a formal warning if a person contravenes a 3 civil penalty provision. 4 16 Operation of State and Territory laws 5 This Act is not intended to exclude or limit the operation of a law of 6 a State or Territory to the extent that the law is capable of operating 7 concurrently with this Act. 8 17 Implied freedom of political communication 9 This Act does not apply to the extent (if any) that it would infringe 10 any constitutional doctrine of implied freedom of political 11 communication. 12 18 Administration of Act 13 Expenditure by the ACCC in administration of this Act is to be 14 funded from funds appropriated by the Parliament for the operation 15 of the ACCC. 16 19 Regulations 17 The Governor-General may make regulations prescribing matters: 18 (a) required or permitted to be prescribed by this Act; or 19 (b) necessary or convenient to be prescribed for carrying out or 20 giving effect to this Act. 21 10 Telemarketing (Protection of Privacy Rights of Residential Telephone Subscribers) Bill 2005 No. , 2005 [Page Break] Clause 1 Schedule 1--Infringement notices 1 2 Note: See section 15. 3 1 Object 4 The object of this Schedule is to set up a system of infringement 5 notices for contraventions of civil penalty provisions as an 6 alternative to the institution of proceedings in the Federal Court. 7 2 Definitions 8 In this Schedule: 9 authorised person means: 10 (a) the Chair of the ACCC; or 11 (b) a member of the staff of the ACCC appointed under 12 clause 9. 13 civil contravention means a contravention of a civil penalty 14 provision 15 infringement notice means an infringement notice under clause 3. 16 3 When an infringement notice can be given 17 (1) If an authorised person has reasonable grounds to believe that a 18 person has, on a particular day, committed one or more 19 contraventions of a particular civil penalty provision, the authorised 20 person may give to the person an infringement notice relating to 21 those contraventions. 22 (2) An infringement notice must be given within 12 months after the 23 day on which the civil contraventions are alleged to have taken 24 place. 25 (3) This clause does not authorise the giving of 2 or more infringement 26 notices to a person in relation to contraventions of a particular civil 27 penalty provision that allegedly occurred on the same day. 28 Telemarketing (Protection of Privacy Rights of Residential Telephone Subscribers) Bill 2005 No. , 2005 11 [Page Break] Clause 4 4 Matters to be included in an infringement notice 1 (1) An infringement notice must: 2 (a) set out the name of the person to whom the notice is given; 3 and 4 (b) set out the name of the authorised person who gave the notice; 5 and 6 (c) set out brief details of each of the alleged civil contraventions; 7 (d) contain a statement to the effect that the matter or matters will 8 not be dealt with by the Federal Court if the penalty specified 9 in the notice is paid to the ACCC, on behalf of the 10 Commonwealth, within 28 days after the notice is given; 11 (e) give an explanation of how payment of the penalty is to be 12 made. 13 (2) For the purposes of paragraph 1(c), the brief details must include 14 the following information in relation to each alleged civil 15 contravention: 16 (a) the date of the alleged contravention; 17 (b) the civil penalty provision that was allegedly contravened. 18 5 Amount of penalty 19 Infringement notice given to a body corporate 20 (1) The penalty to be specified in an infringement notice given to a body 21 corporate must be a pecuniary penalty equal to the number of 22 penalty units worked out using the table: 23 24 Number of penalty units Item In this case... the number of penalty units is... 1 the notice relates to a single alleged 5 contravention of subsection 7(1) or (3) or subsection 8(1) 12 Telemarketing (Protection of Privacy Rights of Residential Telephone Subscribers) Bill 2005 No. , 2005 [Page Break] Clause 5 Number of penalty units Item In this case... the number of penalty units is... 2 the notice relates to more than 1, but The number obtained by multiplying fewer than 50, alleged 5 by the number of alleged contraventions of subsection 7(1) or contraventions (3) or subsection 8(1) 3 the notice relates to 50 or more 500 alleged contraventions of subsection 7(1) or (3) or subsection 8(1) 4 The notice relates to a single alleged 10 contravention of subsection 9(1) 5 The notice relates to more than 1, The number obtained by multiplying but fewer than 50, alleged 10 by the number of alleged contraventions of subsection 9(1) contraventions 6 The notice relates to 50 or more 1,000 alleged contraventions of subsection 9(1) 1 Infringement notice given to a person other than a body corporate 2 (1) The penalty to be specified in an infringement notice given to a 3 person other than a body corporate must be a pecuniary penalty 4 equal to the number of penalty units worked out using the table: 5 6 Number of penalty units Item In this case... the number of penalty units is... 1 the notice relates to a single alleged 1 contravention of subsection 7(1) or (3) or subsection 8(1) 2 the notice relates to more than 1, but The number obtained by multiplying fewer than 50, alleged 1 by the number of alleged contraventions of subsection 7(1) or contraventions (3) or subsection 8(1) 3 the notice relates to 50 or more 100 alleged contraventions of subsection 7(1) or (3) or subsection 8(1) Telemarketing (Protection of Privacy Rights of Residential Telephone Subscribers) Bill 2005 No. , 2005 13 [Page Break] Clause 6 Number of penalty units Item In this case... the number of penalty units is... 4 The notice relates to a single alleged 2 contravention of subsection 9(1) 5 The notice relates to more than 1, The number obtained by multiplying but fewer than 50, alleged 2 by the number of alleged contraventions of subsection 9(1) contraventions 6 The notice relates to 50 or more 200 alleged contraventions of subsection 9(1) 6 Withdrawal of an infringement notice 1 (1) This clause applies if an infringement notice is given to a person. 2 (2) An authorised person may, by written notice (the withdrawal 3 notice) given to the person, withdraw the infringement notice. 4 (3) To be effective, the withdrawal notice must be given to the person 5 within 28 days after the infringement notice was given. 6 Refund of penalty if infringement notice withdrawn 7 (4) If: 8 (a) the penalty specified in the infringement notice is paid; and 9 (b) the infringement notice is withdrawn after the penalty is paid; 10 the Commonwealth is liable to refund the penalty. 11 7 What happens if the penalty is paid 12 (1) This clause applies if: 13 (a) an infringement notice relating to one or more alleged civil 14 contraventions is given to a person; and 15 (b) the penalty is paid in accordance with the infringement notice; 16 and 17 (c) the infringement notice is not withdrawn. 18 14 Telemarketing (Protection of Privacy Rights of Residential Telephone Subscribers) Bill 2005 No. , 2005 [Page Break] Clause 8 (2) Any liability of the person for the alleged civil contraventions is 1 discharged. 2 (3) Proceedings under Part 3 may not be brought against the person for 3 the alleged civil contraventions. 4 8 Effects of this Schedule on civil proceedings 5 This Schedule does not: 6 (a) require an infringement notice to be given in relation to an 7 alleged civil contravention; or 8 (b) affect the liability of a person to have proceedings under 9 Part 3 brought against the person for an alleged civil 10 contravention if: 11 (i) the person does not comply with an infringement notice 12 relating to the contravention; or 13 (ii) an infringement notice relating to the contravention is not 14 given to the person; or 15 (iii) an infringement notice relating to the contravention is 16 given to the person and subsequently withdrawn; or 17 (c) limit the Federal Court's discretion to determine the amount of 18 a penalty to be imposed on a person who is found in 19 proceedings under Part 3 to have committed a civil 20 contravention. 21 9 Appointment of authorised person 22 The ACCC may, by writing, appoint a member of the staff of the 23 ACCC as an authorised person for the purposes of this Schedule. 24 Telemarketing (Protection of Privacy Rights of Residential Telephone Subscribers) Bill 2005 No. , 2005 15 [Page Break]