Compilation #16 | Effective 2021-09-01
FRBR Work URI: /akn/au/act/2006/88
This Act may be cited as the Do Not Call Register Act 2006.
Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
The following is a simplified outline of this Act:
• Unsolicited telemarketing calls must not be made to a number registered on the Do Not Call Register.
• Unsolicited marketing faxes must not be sent to a number registered on the Do Not Call Register.
• The main remedies for breaches of this Act are civil penalties and injunctions.
Note: The Telecommunications Act 1997 contains additional provisions about telemarketing calls and marketing faxes. Those provisions include Part 6 (industry codes and standards), Part 26 (investigations), Part 27 (information-gathering powers) and Part 31A (enforceable undertakings).
In this Act:
account includes:
a free account; and
a pre-paid account; and
anything that may reasonably be regarded as the equivalent of an account.
ACMA means the Australian Communications and Media Authority.
acquire, when used in relation to goods or services, has the same meaning as in the Competition and Consumer Act 2010.
agency includes:
an armed force; and
a police force.
Australia means the Commonwealth of Australia and, when used in a geographical sense, includes the eligible Territories, but does not include any other external Territory.
Australian number means a number that is: specified in: (i) the numbering scheme referred to in Telecommunications Act 1997; orsection 454A of the the numbering plan referred to in section 455 of that Act; and for use in connection with the supply of carriage services to the public in Australia, within the meaning of subsection 456(2) of that Act. authorise: when used in relation to the making of a telemarketing call—has a meaning affected by clause 6 of Schedule 1; or when used in relation to the sending of a marketing fax—has a meaning affected by clause 6 of Schedule 1A.
specified in:
(i) the numbering scheme referred to in Telecommunications Act 1997; orsection 454A of the
the numbering plan referred to in section 455 of that Act; and
for use in connection with the supply of carriage services to the public in Australia, within the meaning of subsection 456(2) of that Act.
authorise:
when used in relation to the making of a telemarketing call—has a meaning affected by clause 6 of Schedule 1; or
when used in relation to the sending of a marketing fax—has a meaning affected by clause 6 of Schedule 1A.
authorised officer means:
the Chair of the ACMA; or
a member of the staff of the ACMA appointed under clause 8 of Schedule 3.
business includes a venture or concern in trade or commerce, whether or not conducted on a regular, repetitive or continuous basis.
business number means an Australian number other than a number that is used, or maintained, exclusively or primarily for private or domestic purposes.
candidate means a person who has been nominated as a candidate under: (a) the Commonwealth Electoral Act 1918; or a law of a State or Territory that deals with electoral matters.
(a) the Commonwealth Electoral Act 1918; or
a law of a State or Territory that deals with electoral matters.
carriage service has the same meaning as in the Telecommunications Act 1997.
cause:
when used in relation to the making of a telemarketing call—has a meaning affected by subsection 11(9); or
when used in relation to the sending of a marketing fax—has a meaning affected by subsection 12B(10).
civil contravention means a contravention of a civil penalty provision.
civil penalty order means an order under subsection 24(1).
civil penalty provision means any of the following provisions: subsection 11(1); subsection 11(7); subsection 12(1); subsection 12(2); subsection 12B(1); subsection 12B(8); subsection 12C(1); subsection 12C(2); a provision of the regulations that is declared to be a civil penalty provision in accordance with paragraph 44(2)(c). consent, when used in relation to the making of a telemarketing call or the sending of a marketing fax, has the meaning given by Schedule 2.
subsection 11(1);
subsection 11(7);
subsection 12(1);
subsection 12(2);
subsection 12B(1);
subsection 12B(8);
subsection 12C(1);
subsection 12C(2);
a provision of the regulations that is declared to be a civil penalty provision in accordance with paragraph 44(2)(c).
consent, when used in relation to the making of a telemarketing call or the sending of a marketing fax, has the meaning given by Schedule 2.
contracted service provider means the person (if any) who keeps the Do Not Call Register as mentioned in paragraph 13(1)(b).
data processing device has the same meaning as in the Telecommunications Act 1997.
dealing with:
when used in relation to a telemarketing call—includes retrieving the call from a voicemail system or similar system; or
when used in relation to a marketing fax—includes:
printing the fax; and
retrieving the fax from a device or a computer system.
designated marketing fax has the meaning given by Schedule 1A.
designated telemarketing call has the meaning given by Schedule 1.
director includes a member of the governing body of an organisation.
Do Not Call Register means the register kept under section 13.
educational institution includes:
a pre-school; and
a school; and
a college; and
a university.
eligible Territory means:
the Territory of Christmas Island; or
the Territory of Cocos (Keeling) Islands; or
an external Territory prescribed for the purposes of section 8.
emergency service number has the same meaning as in the Telecommunications Act 1997.
employee:
when used in clause 4 of Schedule 1—has a meaning affected by clause 7 of Schedule 1; or
when used in clause 4 of Schedule 1A—has a meaning affected by clause 7 of Schedule 1A.
employer:
when used in clause 4 of Schedule 1—has a meaning affected by clause 7 of Schedule 1; or
when used in clause 4 of Schedule 1A—has a meaning affected by clause 7 of Schedule 1A.
evidential burden means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
fax has a meaning affected by section 5A.
Federal Court means the Federal Court of Australia.
give effect to, in relation to a contract, arrangement or understanding, includes do an act or thing:
in pursuance of; or
in accordance with;
the contract, arrangement or understanding.
goods has the same meaning as in the Competition and Consumer Act 2010.
government body means:
a department of the Commonwealth, a State or a Territory; or
an agency, authority or instrumentality of the Commonwealth, a State or a Territory; or
a department of the government of a foreign country; or
an agency, authority or instrumentality of the government of a foreign country; or
a department of the government of a part of a foreign country; or
an agency, authority or instrumentality of the government of a part of a foreign country.
infringement notice means an infringement notice under clause 2 of Schedule 3.
international convention means:
a convention to which Australia is a party; or
an agreement between Australia and a foreign country.
investment means any mode of application of money or other property for the purpose of gaining a return (whether by way of income, capital gain or any other form of return).
make includes attempt to make.
marketing fax has the meaning given by section 5B.
mistake means reasonable mistake of fact.
nominee has the meaning given by section 39.
organisation includes:
a body corporate; and
a partnership; and
a government body; and
a court or tribunal; and
an unincorporated body or association.
Express references in this Act to organisations do not imply that references in this Act to persons do not include bodies politic or corporate.
person includes a partnership.
publish includes:
Note: Subsection 2C(1) of the Acts Interpretation Act 1901 provides that person includes a body politic or corporate as well as an individual.
Note: For treatment of partnerships, see Telecommunications Act 1997.section 585 of the
publish on the internet; and
publish to the public or a section of the public.
registered charity means an entity that is registered under the Australian Charities and Not-for-profits Commission Act 2012 as the type of entity mentioned in column 1 of item 1 of the table in subsection 25-5(5) of that Act.
registered political party means a political party, or a branch or division of a political party, that is registered under: (a) the Commonwealth Electoral Act 1918; or a law of a State or Territory that deals with electoral matters.
(a) the Commonwealth Electoral Act 1918; or
a law of a State or Territory that deals with electoral matters.
relevant account-holder, in relation to an Australian number, means:
if an individual or organisation is solely responsible for the relevant account—the individual or organisation; or
if 2 or more individuals and/or organisations are jointly responsible for the relevant account—any of those individuals or organisations.
send includes attempt to send.
services has the same meaning as in the Competition and Consumer Act 2010.
supply:
(a) when used in relation to goods or services—has the same meaning as in the Competition and Consumer Act 2010; or
when used in relation to land—includes transfer; or
when used in relation to an interest in land—includes transfer or create.
telemarketing call has the meaning given by section 5.
voice call means:
a voice call within the ordinary meaning of that expression; or
a call that involves a recorded or synthetic voice; or
if a call covered by paragraph (a) or (b) is not practical for a particular recipient with a disability (for example, because the recipient has a hearing impairment)—a call that is equivalent to a call covered by either of those paragraphs;
whether or not the recipient responds by way of pressing buttons on a telephone handset or similar thing.
Basic definition
(1) For the purposes of this Act, a telemarketing call is a voice call to an Australian number, where, having regard to:
the content of the call; and
the presentational aspects of the call; and
the content that can be obtained using the numbers, URLs or contact information (if any) mentioned in the call; and
if the number from which the call is made is disclosed to the recipient (whether by calling line identification or otherwise)—the content (if any) that can be obtained by calling that number;
it would be concluded that the purpose, or one of the purposes, of the call is:
to offer to supply goods or services; or
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.
For the purposes of paragraphs (1)(e) to (m), it is immaterial whether the goods, services, land, interest or opportunity exists.
For the purposes of paragraphs (1)(e) to (m), it is immaterial whether it is lawful to acquire the goods, services, land or interest or take up the opportunity.
Either of the following:
the supplier or prospective supplier mentioned in paragraph (1)(g) or (j);
the provider or prospective provider mentioned in paragraph (1)(m);
may be the individual or organisation who made the call or authorised the making of the call.
Paragraphs (1)(e) to (o) are to be read independently of each other.
Subsection (1) has effect subject to subsection (7).
Excluded calls—regulations
(7) The regulations may provide that a specified kind of voice call is not a telemarketing call for the purposes of this Act.
A reference in this Act to a fax is a reference to a fax, whether or not:
the fax is a facsimile of a physical document; or
the fax was created by computer software; or
the sending of the fax involves the use of:
a fax machine; or
a fax server; or
a fax gateway; or
a mail-to-fax system; or
equipment specified in the regulations; or
a system specified in the regulations.
Basic definition
(1) For the purposes of this Act, a marketing fax is a fax sent to an Australian number, where, having regard to:
the content of the fax; and
the presentational aspects of the fax; and
the content that can be obtained using the numbers, URLs or contact information (if any) mentioned in the fax;
it would be concluded that the purpose, or one of the purposes, of the fax is:
to offer to supply goods or services; or
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.
For the purposes of paragraphs (1)(d) to (l), it is immaterial whether the goods, services, land, interest or opportunity exists.
For the purposes of paragraphs (1)(d) to (l), it is immaterial whether it is lawful to acquire the goods, services, land or interest or take up the opportunity.
Either of the following:
the supplier or prospective supplier mentioned in paragraph (1)(f) or (i);
the provider or prospective provider mentioned in paragraph (1)(l);
may be the individual or organisation who sent the fax or authorised the sending of the fax.
Paragraphs (1)(d) to (n) are to be read independently of each other.
Subsection (1) has effect subject to subsection (7).
Excluded faxes—regulations
(7) The regulations may provide that a specified kind of fax is not a marketing fax for the purposes of this Act.
For the purposes of this Act, a change in the composition of a partnership does not affect the continuity of the partnership.
This Act binds the Crown in each of its capacities.
This Act does not make the Crown liable to a pecuniary penalty or to be prosecuted for an offence.
The protection in subsection (2) does not apply to an authority of the Crown.
This Act extends to:
the Territory of Christmas Island; and
the Territory of Cocos (Keeling) Islands; and
such other external Territories (if any) as are prescribed.
This Act does not extend to Norfolk Island unless it is prescribed.
Unless the contrary intention appears, this Act extends to acts, omissions, matters and things outside Australia.
The following is a simplified outline of this Part:
• Unsolicited telemarketing calls must not be made to a number registered on the Do Not Call Register.
• Agreements for the making of telemarketing calls must require compliance with this Act.
A person must not make, or cause to be made, a telemarketing call to an Australian number if:
the number is registered on the Do Not Call Register; and
the call is not a designated telemarketing call.
Note: For designated telemarketing call, see Schedule 1.
Subsection (1) does not apply if:
the relevant account-holder; or
a nominee of the relevant account-holder;
consented to the making of the call.
Note 1: For the meaning of consent, see Schedule 2.
Note 2: For the meaning of nominee, see section 39.
Subsection (1) does not apply if:
the number was included on a list that was submitted by the person under subsection 19(1); and
during the 30-day period ending at the end of the day on which the call was made:
the person received information under paragraph 19(2)(d) in response to the submission of the list, but that information did not state that the number was registered on the Do Not Call Register; or
the person was informed under paragraph 19(2)(e), in response to the submission of the list, that the number was not registered on the Do Not Call Register; or
under paragraph 19(2)(f), in response to the submission of the list, the person was given a list that included the number.
For the purposes of this subsection, a list may consist of a single Australian number.
Note: Section 19 deals with access to the Do Not Call Register.
Subsection (1) does not apply if the person made the call, or caused the call to be made, by mistake.
Subsection (1) does not apply if the person took reasonable precautions, and exercised due diligence, to avoid the contravention.
A person who wishes to rely on subsection (2), (3), (4) or (5) bears an evidential burden in relation to that matter.
Ancillary contraventions
A person must not:
aid, abet, counsel or procure a contravention of subsection (1); or
induce, whether by threats or promises or otherwise, a contravention of subsection (1); or
be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or
conspire with others to effect a contravention of subsection (1).
Civil penalty provisions
(8) Subsections (1) and (7) are civil penalty provisions.
Note: Part 4 provides for pecuniary penalties for breaches of civil penalty provisions.
Extended meaning of cause
For the purposes of this section, if:
(a) a person (the first person) enters into a contract or arrangement, or arrives at an understanding, with another person; and
the other person, or an employee or agent of the other person, gives effect to the contract, arrangement or understanding by making a telemarketing call;
the first person is taken to have caused the telemarketing call to be made.
Paragraph (9)(a) applies to contracts or arrangements entered into, or understandings arrived at, before, at or after the commencement of this section.
(1) A person (the first person) must not enter into a contract or arrangement, or arrive at an understanding, with another person, if:
there is a reasonable likelihood that the other person will give effect to the contract, arrangement or understanding by:
making telemarketing calls; or
causing any or all of the employees or agents of the other person to make telemarketing calls; and
there is a reasonable likelihood that some or all of those calls will be made to Australian numbers that, under section 14, are eligible to be entered on the Do Not Call Register; and
the contract, arrangement or understanding does not contain an express provision to the effect that the other person will:
in any case—comply with this Act; and
if subparagraph (a)(ii) applies—take all reasonable steps to ensure that the employees and agents of the other person comply with this Act;
in relation to the making of telemarketing calls that are made in order to give effect to the contract, arrangement or understanding.
Ancillary contraventions
A person must not:
aid, abet, counsel or procure a contravention of subsection (1); or
induce, whether by threats or promises or otherwise, a contravention of subsection (1); or
be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or
conspire with others to effect a contravention of subsection (1).
Civil penalty provisions
(3) Subsections (1) and (2) are civil penalty provisions.
Note: Part 4 provides for pecuniary penalties for breaches of civil penalty provisions.
Validity of contracts, arrangements or understandings
A failure to comply with subsection (1) does not affect the validity of any contract, arrangement or understanding.
The following is a simplified outline of this Part:
• Unsolicited marketing faxes must not be sent to a number registered on the Do Not Call Register.
• Agreements for the sending of marketing faxes must require compliance with this Act.
A person must not send, or cause to be sent, a marketing fax to an Australian number if:
the number is registered on the Do Not Call Register; and
the fax is not a designated marketing fax.
Note: For designated marketing fax, see Schedule 1A.
Subsection (1) does not apply if:
the relevant account-holder; or
a nominee of the relevant account-holder;
consented to the sending of the fax.
Note 1: For the meaning of consent, see Schedule 2.
Note 2: For the meaning of nominee, see section 39.
Subsection (1) does not apply if:
the number was included on a list that was submitted by the person under subsection 19(1); and
during the 30-day period ending at the end of the day on which the fax was sent:
the person received information under paragraph 19(2)(d) in response to the submission of the list, but that information did not state that the number was registered on the Do Not Call Register; or
the person was informed under paragraph 19(2)(e), in response to the submission of the list, that the number was not registered on the Do Not Call Register; or
under paragraph 19(2)(f), in response to the submission of the list, the person was given a list that included the number.
For the purposes of this subsection, a list may consist of a single Australian number.
Note: Section 19 deals with access to the Do Not Call Register.
Subsection (1) does not apply if the person sent the fax, or caused the fax to be sent, by mistake.
Subsection (1) does not apply if the person took reasonable precautions, and exercised due diligence, to avoid the contravention.
A person who wishes to rely on subsection (2), (3), (5) or (6) bears an evidential burden in relation to that matter.
Ancillary contraventions
A person must not:
aid, abet, counsel or procure a contravention of subsection (1); or
induce, whether by threats or promises or otherwise, a contravention of subsection (1); or
be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or
conspire with others to effect a contravention of subsection (1).
Civil penalty provisions
(9) Subsections (1) and (8) are civil penalty provisions.
Note: Part 4 provides for pecuniary penalties for breaches of civil penalty provisions.
Extended meaning of cause
For the purposes of this section, if:
(a) a person (the first person) enters into a contract or arrangement, or arrives at an understanding, with another person; and
the other person, or an employee or agent of the other person, gives effect to the contract, arrangement or understanding by sending a marketing fax;
the first person is taken to have caused the marketing fax to be sent.
Paragraph (10)(a) applies to contracts or arrangements entered into, or understandings arrived at, before, at or after the commencement of this section.
(1) A person (the first person) must not enter into a contract or arrangement, or arrive at an understanding, with another person, if:
there is a reasonable likelihood that the other person will give effect to the contract, arrangement or understanding by:
sending marketing faxes; or
causing any or all of the employees or agents of the other person to send marketing faxes; and
there is a reasonable likelihood that some or all of those faxes will be sent to Australian numbers that, under section 14, are eligible to be entered on the Do Not Call Register; and
the contract, arrangement or understanding does not contain an express provision to the effect that the other person will:
in any case—comply with this Act; and
if subparagraph (a)(ii) applies—take all reasonable steps to ensure that the employees and agents of the other person comply with this Act;
in relation to the sending of marketing faxes that are sent in order to give effect to the contract, arrangement or understanding.
Ancillary contraventions
A person must not:
aid, abet, counsel or procure a contravention of subsection (1); or
induce, whether by threats or promises or otherwise, a contravention of subsection (1); or
be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or
conspire with others to effect a contravention of subsection (1).
Civil penalty provisions
(3) Subsections (1) and (2) are civil penalty provisions.
Note: Part 4 provides for pecuniary penalties for breaches of civil penalty provisions.
Validity of contracts, arrangements or understandings
A failure to comply with subsection (1) does not affect the validity of any contract, arrangement or understanding.
The ACMA must:
keep; or
(b) arrange for another person (the contracted service provider) to keep, on behalf of the ACMA;
a register of Australian numbers for the purposes of this Act.
The register is to be known as the Do Not Call Register.
The register is to be kept in electronic form.
The register is not a legislative instrument.
The ACMA must begin to comply with subsection (1) as soon as practicable after the commencement of this section.
For the purposes of the Privacy Act 1988, the primary purpose of the Do Not Call Register is to facilitate:
the prohibition, under section 11, of unsolicited telemarketing calls (other than designated telemarketing calls); and
the prohibition, under section 12B, of unsolicited marketing faxes (other than designated marketing faxes).
An Australian number is eligible to be entered on the Do Not Call Register if:
it is used or maintained primarily for private or domestic purposes; or
it is used or maintained exclusively for transmitting and/or receiving faxes; or
it is used or maintained exclusively for use by a government body; or
it is an emergency service number.
An application for an Australian number to be entered on the Do Not Call Register:
may be made by:
the relevant account-holder; or
a nominee of the relevant account-holder; and
is to be made to:
if the Do Not Call Register is kept by the ACMA—the ACMA; or
if the Do Not Call Register is kept by the contracted service provider—the contracted service provider on behalf of the ACMA; and
is to be in the applicable form (if any) specified in a determination under subsection 18(1); and
is to be made in the applicable manner (if any) specified in a determination under subsection 18(1).
Note: For the meaning of nominee, see section 39.
If:
an application is made for an Australian number to be entered on the Do Not Call Register; and
the applicant satisfies:
if the Do Not Call Register is kept by the ACMA—the ACMA; or
if the Do Not Call Register is kept by the contracted service provider—the contracted service provider on behalf of the ACMA;
that the number is eligible to be entered on the Do Not Call Register;
then:
if the Do Not Call Register is kept by the ACMA—the ACMA; or
if the Do Not Call Register is kept by the contracted service provider—the contracted service provider on behalf of the ACMA;
must enter the number on the Do Not Call Register.
The registration of an Australian number on the Do Not Call Register:
takes effect when it is entered on the Do Not Call Register; and
unless sooner removed from the Do Not Call Register in accordance with a determination under subsection 18(1), remains in force indefinitely.
If an Australian number is removed from the Do Not Call Register, this Act does not prevent the number from being re-registered on the Do Not Call Register.
The ACMA may make a determination that makes provision for and in relation to any or all of the following:
the form of applications for Australian numbers to be entered on the Do Not Call Register;
the manner in which such applications are to be made;
the manner in which entries are to be made on the Do Not Call Register;
the correction of entries in the Do Not Call Register;
the removal of entries from the Do Not Call Register;
any other matter relating to the administration or operation of the Do Not Call Register.
A determination under subsection (1) is a legislative instrument.
A determination under subsection (1) is to be an instrument of a legislative character.
(1) A person (the access-seeker) who wishes to access the Do Not Call Register may submit a list of Australian numbers to:
if the Do Not Call Register is kept by the ACMA—the ACMA; or
if the Do Not Call Register is kept by the contracted service provider—the contracted service provider on behalf of the ACMA.
For this purpose, a list may consist of a single Australian number.
If the access-seeker has paid the applicable fee (if any) determined under subsection 21(1), then:
if the Do Not Call Register is kept by the ACMA—the ACMA; or
if the Do Not Call Register is kept by the contracted service provider—the contracted service provider on behalf of the ACMA;
must:
check the Australian numbers on the access-seeker’s list against the Australian numbers registered on the Do Not Call Register; and
if the access-seeker requests the ACMA or the contracted service provider, as the case may be, to do so—inform the access-seeker which numbers (if any) on the access-seeker’s list are registered on the Do Not Call Register; and
if the access-seeker requests the ACMA or the contracted service provider, as the case may be, to do so—inform the access-seeker which numbers (if any) on the access-seeker’s list are not registered on the Do Not Call Register; and
if the access-seeker requests the ACMA or the contracted service provider, as the case may be, to do so—return the access-seeker’s list, modified by the deletion of the numbers (if any) registered on the Do Not Call Register.
A submission under subsection (1) is to be made in the applicable manner (if any) specified in a determination under subsection 20(1).
The ACMA may make a determination that makes provision for and in relation to any or all of the following:
the manner in which a submission under subsection 19(1) is to be made;
the manner in which information under paragraph 19(2)(d) or (e) is to be given;
the manner in which a list is to be returned under paragraph 19(2)(f);
any other matter relating to access to the Do Not Call Register.
Determinations
A determination under subsection (1) is a legislative instrument.
A determination under subsection (1) is to be an instrument of a legislative character.
The ACMA may make a determination that makes provision for and in relation to either or both of the following:
fees payable for services provided under subsection 19(2);
refunds of fees for those services.
Exemptions
The ACMA may make a determination that makes provision for and in relation to exemptions from fees for services provided under subsection 19(2).
The Minister may make a determination that makes provision for and in relation to exemptions from fees for services provided under subsection 19(2).
If one or more determinations are in force under subsection (3), a determination under subsection (2) has no effect except to the extent to which it makes provision for and in relation to exemptions that are in addition to exemptions dealt with by the determinations under subsection (3).
Other matters
A fee must not be such as to amount to taxation.
A fee is payable to the ACMA on behalf of the Commonwealth.
(7) Section 60 of the Australian Communications and Media Authority Act 2005 does not apply in relation to services provided under subsection 19(2).
Note: Section 60 of the Australian Communications and Media Authority Act 2005 deals with charges relating to the ACMA’s expenses.
Determinations
A determination under subsection (1), (2) or (3) is a legislative instrument.
A determination under subsection (1), (2), or (3) is to be an instrument of a legislative character.
(1) For the purposes of the Privacy Act 1988, if the Do Not Call Register is kept by the contracted service provider under a contract:
the keeping of the Do Not Call Register by the contracted service provider; and
the operation of the Do Not Call Register by the contracted service provider; and
the performance of a function, or the exercise of a power, by the contracted service provider under:
this Part; or
a determination under this Part;
is taken to be the provision of a service to the ACMA under the contract.
Subsection (1) is enacted for the avoidance of doubt.
The following is a simplified outline of this Part:
• Pecuniary penalties are payable for contraventions of civil penalty provisions.
• Proceedings for the recovery of penalties are to be instituted in the Federal Court or the Federal Circuit and Family Court of Australia (Division 2).
Note: Schedule 3 sets up a system of infringement notices relating to contraventions of civil penalty provisions.
If the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) is satisfied that a person has contravened a civil penalty provision, the court may, on the application of the ACMA, order the person to pay to the Commonwealth a pecuniary penalty.
(2) An order under subsection (1) is to be known as a civil penalty order.
Determining pecuniary penalty
In determining the pecuniary penalty, the court must have regard to all relevant matters, including:
the nature and extent of the contravention; and
the nature and extent of any loss or damage suffered as a result of the contravention; and
the circumstances in which the contravention took place; and
whether the person has previously been found by a court in proceedings under this Act to have engaged in any similar conduct; and
if the court considers that it is appropriate to do so—whether the person has previously been found by a court in a foreign country to have engaged in any similar conduct.
Civil enforcement of penalty
The pecuniary penalty is a civil debt payable to the Commonwealth. The Commonwealth may enforce the civil penalty order as if it were an order made in civil proceedings against the person to recover a debt due by the person. The debt arising from the order is taken to be a judgment debt.
The maximum penalty payable under subsection 24(1) by a person in respect of a contravention of a civil penalty provision depends on:
whether the person has a prior record in relation to the civil penalty provision (see subsection (2)); and
whether the person is a body corporate; and
whether the civil penalty provision is subsection 11(1) or (7) or 12B(1) or (8).
Prior record
If:
(a) on a particular day (the first day), the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) makes a civil penalty order against a person in respect of a contravention of a particular civil penalty provision; and
that is the first occasion on which a court makes a civil penalty order against the person in respect of a contravention of the civil penalty provision;
then, for the purposes of determining the penalty payable under subsection 24(1) by the person in respect of a contravention of the civil penalty provision that occurs after the first day, the person has a prior record in relation to the civil penalty provision.
Maximum penalty payable by body corporate—no prior record
If a body corporate does not have a prior record in relation to a particular civil penalty provision:
the penalty payable under subsection 24(1) by the body corporate in respect of a contravention of the civil penalty provision must not exceed:
if the civil penalty provision is subsection 11(1) or (7) or 12B(1) or (8)—100 penalty units; or
in any other case—50 penalty units; and
if the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) finds that the body corporate has, on a particular day, committed 2 or more contraventions of the civil penalty provision—the total of the penalties payable under subsection 24(1) by the body corporate in respect of those contraventions must not exceed:
if the civil penalty provision is subsection 11(1) or (7) or 12B(1) or (8)—2,000 penalty units; or
in any other case—1,000 penalty units.
Maximum penalty payable by a person other than a body corporate—no prior record
If a person other than a body corporate does not have a prior record in relation to a particular civil penalty provision:
the penalty payable under subsection 24(1) by the person in respect of a contravention of the civil penalty provision must not exceed:
if the civil penalty provision is subsection 11(1) or (7) or 12B(1) or (8)—20 penalty units; or
in any other case—10 penalty units; and
if the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) finds that the person has, on a particular day, committed 2 or more contraventions of the civil penalty provision—the total of the penalties payable under subsection 24(1) by the person in respect of those contraventions must not exceed:
if the civil penalty provision is subsection 11(1) or (7) or 12B(1) or (8)—400 penalty units; or
in any other case—200 penalty units.
Maximum penalty payable by body corporate—prior record
If a body corporate has a prior record in relation to a particular civil penalty provision:
the penalty payable under subsection 24(1) by the body corporate in respect of a contravention of the civil penalty provision must not exceed:
if the civil penalty provision is subsection 11(1) or (7) or 12B(1) or (8)—500 penalty units; or
in any other case—250 penalty units; and
if the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) finds that the body corporate has, on a particular day, committed 2 or more contraventions of the civil penalty provision—the total of the penalties payable under subsection 24(1) by the body corporate in respect of those contraventions must not exceed:
if the civil penalty provision is subsection 11(1) or (7) or 12B(1) or (8)—10,000 penalty units; or
in any other case—5,000 penalty units.
Maximum penalty payable by a person other than a body corporate—prior record
If a person other than a body corporate has a prior record in relation to a particular civil penalty provision:
the penalty payable under subsection 24(1) by the person in respect of a contravention of the civil penalty provision must not exceed:
if the civil penalty provision is subsection 11(1) or (7) or 12B(1) or (8)—100 penalty units; or
in any other case—50 penalty units; and
if the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) finds that the person has, on a particular day, committed 2 or more contraventions of the civil penalty provision—the total of the penalties payable under subsection 24(1) by the person in respect of those contraventions must not exceed:
if the civil penalty provision is subsection 11(1) or (7) or 12B(1) or (8)—2,000 penalty units; or
in any other case—1,000 penalty units.
The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may direct that 2 or more proceedings for civil penalty orders are to be heard together.
Proceedings for a civil penalty order may be started no later than 6 years after the contravention.
The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) must apply the rules of evidence and procedure for civil matters when hearing proceedings for a civil penalty order.
Criminal proceedings do not lie against a person only because the person has contravened a civil penalty provision.
If:
(a) in one or more proceedings under perpetrator) has contravened one or more civil penalty provisions; andsection 24, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) finds that a person (the
(b) the court is satisfied that another person (the victim) has suffered loss or damage as a result of any or all of those contraventions;
the court may, on the application of the ACMA or the victim, make an order that the court considers appropriate directing the perpetrator to compensate the victim.
(2) In determining whether a person (the victim) has suffered loss or damage as a result of one or more contraventions by another person of section 11 in relation to the making of one or more telemarketing calls, and in assessing the amount of compensation payable, the court may have regard to the following:
the extent to which any expenses incurred by the victim are attributable to dealing with the calls;
the effect of dealing with the calls on the victim’s ability to carry on business or other activities;
any damage to the reputation of the victim’s business that is attributable to dealing with the calls;
any loss of business opportunities suffered by the victim as a result of dealing with the calls;
any other matters that the court considers relevant.
(2A) In determining whether a person (the victim) has suffered loss or damage as a result of one or more contraventions by another person of section 12B in relation to the sending of one or more marketing faxes, and in assessing the amount of compensation payable, the court may have regard to the following:
the extent to which any expenses incurred by the victim are attributable to dealing with the faxes;
the effect of dealing with the faxes on the victim’s ability to carry on business or other activities;
any damage to the reputation of the victim’s business that is attributable to dealing with the faxes;
any loss of business opportunities suffered by the victim as a result of dealing with the faxes;
any other matters that the court considers relevant.
The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may make an order under subsection (1), whether or not it makes a civil penalty order.
An application under subsection (1) may be made at any time within 6 years after the contravention concerned.
If:
in one or more proceedings under section 24, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) finds that a person has contravened one or more civil penalty provisions; and
the court is satisfied that the person has obtained (whether directly or indirectly) a financial benefit that is reasonably attributable to any or all of those contraventions;
the court may, on the application of the ACMA, make an order directing the person to pay to the Commonwealth an amount up to the amount of the financial benefit.
The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may make an order under subsection (1), whether or not it makes a civil penalty order.
An application under subsection (1) may be made at any time within 6 years after the contravention concerned.
Schedule 3 has effect.
The following is a simplified outline of this Part:
• The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may grant injunctions in relation to contraventions of civil penalty provisions.
Restraining injunctions
If a person has engaged, is engaging or is proposing to engage, in any conduct in contravention of a civil penalty provision, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may, on the application of the ACMA, grant an injunction:
restraining the person from engaging in the conduct; and
if, in the court’s opinion, it is desirable to do so—requiring the person to do something.
Performance injunctions
If:
a person has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do an act or thing; and
the refusal or failure was, is or would be a contravention of a civil penalty provision;
the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may, on the application of the ACMA, grant an injunction requiring the person to do that act or thing.
Grant of interim injunction
If an application is made to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an injunction under section 34, the court may, before considering the application, grant an interim injunction restraining a person from engaging in conduct of a kind referred to in that section.
No undertakings as to damages
The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) is not to require an applicant for an injunction under section 34, as a condition of granting an interim injunction, to give any undertakings as to damages.
The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may discharge or vary an injunction granted by it under this Part.
Restraining injunctions
The power of the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) under this Part to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised:
if the court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; or
if it appears to the court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the person engages in conduct of that kind.
Performance injunctions
The power of the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) to grant an injunction requiring a person to do an act or thing may be exercised:
if the court is satisfied that the person has refused or failed to do that act or thing—whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; or
if it appears to the court that, if an injunction is not granted, it is likely that the person will refuse or fail to do that act or thing—whether or not the person has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any person if the person refuses or fails to do that act or thing.
The powers conferred on the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) under this Part are in addition to, and not instead of, any other powers of the court, whether conferred by this Act or otherwise.
Nomination by relevant account-holder
For the purposes of the application of this Act to an Australian number, if:
the relevant account-holder has nominated an individual in relation to the number; and
the nomination has not been withdrawn;
the individual is a nominee of the relevant account-holder.
A nomination, or a withdrawal of a nomination, must be in writing.
This Act does not prevent 2 or more individuals from being nominated in relation to the same Australian number.
Deemed nominee
(4) The regulations may provide that, for the purposes of the application of this Act to an Australian number, an individual is taken to be a nominee of the relevant account-holder in the circumstances specified in the regulations.
Principles of agency not limited
References in this Act to a nominee do not, by implication, limit the application of the principles of agency to a matter arising under this Act.
The ACMA may issue a formal warning if a person contravenes a civil penalty provision.
The ACMA has the following functions:
to conduct and/or co-ordinate community education programs about unsolicited telemarketing calls and unsolicited marketing faxes, in consultation with relevant industry and consumer groups and government agencies;
to conduct and/or commission research into issues relating to unsolicited telemarketing calls and unsolicited marketing faxes;
to liaise with regulatory and other relevant bodies overseas about co-operative arrangements for the prohibition or regulation of unsolicited telemarketing calls and unsolicited marketing faxes.
This Act is not intended to exclude or limit the operation of a law of a State or Territory to the extent that the law is capable of operating concurrently with this Act.
This Act does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.
The regulations may make provision for and in relation to giving effect to an international convention that deals with telemarketing calls or marketing faxes.
Regulations made for the purposes of subsection (1) may:
vest the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) with jurisdiction in a matter or matters arising under the regulations; and
prescribe penalties, not exceeding a fine of 50 penalty units, for offences against the regulations; and
declare that a specified provision of the regulations is a civil penalty provision for the purposes of this Act.
The Governor-General may make regulations prescribing matters:
required or permitted to be prescribed by this Act; or
necessary or convenient to be prescribed for carrying out or giving effect to this Act.