Do Not Call Register Act 2006

No. 88, 2006

Compilation No. 16

Compilation date: 1 September 2021

Includes amendments up to: Act No. 13, 2021

Registered: 21 September 2021

About this compilation

This compilation

This is a compilation of the Do Not Call Register Act 2006 that shows the text of the law as amended and in force on 1 September 2021 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self - repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

Contents

Part 1—Introduction 1

1 Short title 1

2 Commencement 1

3 Simplified outline 2

4 Definitions 3

5 Telemarketing calls 9

5A Faxes 11

5B Marketing faxes 11

6 Continuity of partnerships 13

7 Crown to be bound 13

8 Extension to external Territories 13

9 Extra-territorial application 13

Part 2—Rules about making telemarketing calls 14

10 Simplified outline 14

11 Unsolicited telemarketing calls must not be made to a number registered on the Do Not Call Register 14

12 Agreements for the making of telemarketing calls must require compliance with this Act 16

Part 2A—Rules about sending marketing faxes 18

12A Simplified outline 18

12B Unsolicited marketing faxes must not be sent to a number registered on the Do Not Call Register 18

12C Agreements for the sending of marketing faxes must require compliance with this Act 20

Part 3—Do Not Call Register 22

13 Do Not Call Register 22

14 Eligibility for registration 22

15 Applications for registration 23

16 Registration 23

17 Duration of registration 24

18 Administration of the Do Not Call Register—determinations 24

19 Access to the Do Not Call Register 25

20 Access—determinations 26

21 Access—fees 26

22 Application of the Privacy Act 1988 to the contracted service provider 27

Part 4—Civil penalties 29

23 Simplified outline 29

24 Civil penalty orders 29

25 Maximum penalties for contravention of civil penalty provisions 30

26 2 or more proceedings may be heard together 33

27 Time limit for application for an order 33

28 Civil evidence and procedure rules for civil penalty orders 33

29 Criminal proceedings not to be brought for contravention of civil penalty provisions 33

30 Ancillary orders—compensation 34

31 Ancillary orders—recovery of financial benefit 35

32 Schedule 3 (infringement notices) 36

Part 5—Injunctions 37

33 Simplified outline 37

34 Injunctions 37

35 Interim injunctions 38

36 Discharge etc. of injunctions 38

37 Certain limits on granting injunctions not to apply 38

38 Other powers of the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) unaffected 39

Part 6—Miscellaneous 40

39 Nominees 40

40 Formal warnings—breach of civil penalty provision 40

41 Additional ACMA functions 41

42 Operation of State and Territory laws 41

43 Implied freedom of political communication 41

44 Giving effect to international conventions 41

46 Regulations 42

Schedule 1—Designated telemarketing calls 43

1 Object 43

2 Government bodies and charities 43

3 Political parties, independent members of parliament, candidates etc. 43

4 Educational institutions 45

5 Regulations 47

6 Authorising the making of telemarketing calls 47

7 Extended meaning of employee and employer 48

Schedule 1A—Designated marketing faxes 50

1 Object 50

2 Government bodies and charities 50

3 Political parties, independent members of parliament, candidates etc. 50

4 Educational institutions 52

5 Regulations 54

6 Authorising the sending of marketing faxes 54

7 Extended meaning of employee and employer 54

Schedule 2—Consent 57

1 Object 57

2 Basic definition 57

3 Duration of express consent 57

4 Consent may not be inferred from the publication of an Australian number 58

5 Regulations about consent 58

7 Determinations about consent—marketing faxes sent to business numbers 58

Schedule 3—Infringement notices 60

1 Object 60

2 When an infringement notice can be given 60

3 Matters to be included in an infringement notice 60

4 Amount of penalty 62

5 Withdrawal of an infringement notice 64

6 What happens if the penalty is paid 64

7 Effect of this Schedule on civil proceedings 65

8 Appointment of authorised officer 65

9 Regulations 65

Endnotes 66

Endnote 1—About the endnotes 66

Endnote 2—Abbreviation key 68

Endnote 3—Legislation history 69

Endnote 4—Amendment history 71

An Act to establish a Do Not Call Register, and for other purposes

1 Introduction

1 Short title

This Act may be cited as the Do Not Call Register Act 2006.

2 Commencement 1

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.

Commencement information	Commencement information	Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table	The day on which this Act receives the Royal Assent.	30 June 2006
2. Sections 3 to 9	The day on which this Act receives the Royal Assent.	30 June 2006
3. Part 2	A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 12 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.	31 May 2007 (see F2007L01114)
4. Part 3	The day on which this Act receives the Royal Assent.	30 June 2006
5. Parts 4 and 5	At the same time as the provision(s) covered by table item 3.	31 May 2007
6. Sections 39 and 40	At the same time as the provision(s) covered by table item 3.	31 May 2007
7. Section 41	The day on which this Act receives the Royal Assent.	30 June 2006
8. Sections 42 to 45	At the same time as the provision(s) covered by table item 3.	31 May 2007
9. Section 46	The day on which this Act receives the Royal Assent.	30 June 2006
10. Schedules 1, 2 and 3	At the same time as the provision(s) covered by table item 3.	31 May 2007

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.

3 Simplified outline

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).

4 Definitions

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.

5 Telemarketing calls

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.

5A Faxes

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

iii

a fax gateway; or

a mail-to-fax system; or

equipment specified in the regulations; or

a system specified in the regulations.

5B Marketing faxes

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.

6 Continuity of partnerships

For the purposes of this Act, a change in the composition of a partnership does not affect the continuity of the partnership.

7 Crown to be bound 1

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.

8 Extension to external Territories 1

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.

9 Extra-territorial application

Unless the contrary intention appears, this Act extends to acts, omissions, matters and things outside Australia.

2 Rules about making telemarketing calls

10 Simplified outline

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.

11 Unsolicited telemarketing calls must not be made to a number registered on the Do Not Call Register 1

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

iii

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.

12 Agreements for the making of telemarketing calls must require compliance with this Act 1

(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.

2A Rules about sending marketing faxes

12A Simplified outline

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.

12B Unsolicited marketing faxes must not be sent to a number registered on the Do Not Call Register 1

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

iii

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.

12C Agreements for the sending of marketing faxes must require compliance with this Act 1

(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.

3 Do Not Call Register

13 Do Not Call Register 1

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).

14 Eligibility for registration

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.

15 Applications for registration

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.

16 Registration

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.

17 Duration of registration 1

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.

18 Administration of the Do Not Call Register—determinations 1

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.

19 Access to the Do Not Call Register 1

(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—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).

20 Access—determinations 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.

21 Access—fees 1

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.

22 Application of the Privacy Act 1988 to the contracted service provider 1

(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.

4 Civil penalties

23 Simplified outline

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.

24 Civil penalty orders 1

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.

25 Maximum penalties for contravention of civil penalty provisions 1

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 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 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.

26 2 or more proceedings may be heard together

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.

27 Time limit for application for an order

Proceedings for a civil penalty order may be started no later than 6 years after the contravention.

28 Civil evidence and procedure rules for civil penalty orders

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.

29 Criminal proceedings not to be brought for contravention of civil penalty provisions

Criminal proceedings do not lie against a person only because the person has contravened a civil penalty provision.

30 Ancillary orders—compensation 1

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.

31 Ancillary orders—recovery of financial benefit 1

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.

32 Schedule 3 (infringement notices)

Schedule 3 has effect.

5 Injunctions

33 Simplified outline

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.

34 Injunctions

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.

35 Interim injunctions

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.

36 Discharge etc. of injunctions

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.

37 Certain limits on granting injunctions not to apply

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.

38 Other powers of the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) unaffected

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.

6 Miscellaneous

39 Nominees

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.

40 Formal warnings—breach of civil penalty provision

The ACMA may issue a formal warning if a person contravenes a civil penalty provision.

41 Additional ACMA functions

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.

42 Operation of State and Territory laws

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.

43 Implied freedom of political communication

This Act does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.

44 Giving effect to international conventions 1

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.

46 Regulations

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.

Designated telemarketing calls

Note: See section 4.

1 Object

The object of this Schedule is to define the expression designated telemarketing call.

Note: Designated telemarketing calls are exempt from section 11 (unsolicited telemarketing calls must not be made to a number registered on the Do Not Call Register).

2 Government bodies and charities

For the purposes of this Act, a telemarketing call is a designated telemarketing call if:

the making of the call is authorised by either of the following bodies:

a government body;

a registered charity; and

if the call relates to goods or services—the body is the supplier, or prospective supplier, of the goods or services; and

the call is not of a kind specified in the regulations.

3 Political parties, independent members of parliament, candidates etc.

Political parties

it would be concluded that the purpose, or one of the purposes, of the call is:

Independent members of parliament etc.

and who is not affiliated with any registered political party; and

it would be concluded that the purpose, or one of the purposes, of the call is:

Candidates

it would be concluded that the purpose, or one of the purposes, of the call is:

(1) For the purposes of this Act, a telemarketing call is a designated telemarketing call if:

the making of the call is authorised by a registered political party; and

having regard to:

the content of the call; and

the presentational aspects of the call;

iii

to conduct fund-raising for electoral purposes; or

to conduct fund-raising for political purposes; and

if the call relates to goods or services—the registered political party is the supplier, or prospective supplier, of the goods or services; and

the call is not of a kind specified in the regulations.

(2) For the purposes of this Act, a telemarketing call is a designated telemarketing call if:

the making of the call is authorised by a person who is a member of:

the Parliament of the Commonwealth; or

the parliament of a State; or

iii

the Legislative Assembly for the Australian Capital Territory; or

the Legislative Assembly of the Northern Territory; or

a local governing body established by or under a law of a State or a Territory;

having regard to:

the content of the call; and

the presentational aspects of the call;

iii

to conduct fund-raising for electoral purposes; or

to conduct fund-raising for political purposes; and

if the call relates to goods or services—the person is the supplier, or prospective supplier, of the goods or services; and

the call is not of a kind specified in the regulations.

(3) For the purposes of this Act, a telemarketing call is a designated telemarketing call if:

the making of the call is authorised by a person who is a candidate in an election for:

the House of Representatives; or

the Senate; or

iii

a house of the parliament of a State; or

the Legislative Assembly for the Australian Capital Territory; or

the Legislative Assembly of the Northern Territory; or

vii

a local governing body established by or under a law of a State or a Territory; and

having regard to:

the content of the call; and

the presentational aspects of the call;

iii

to conduct fund-raising for electoral purposes; or

to conduct fund-raising for political purposes; and

if the call relates to goods or services—the person is the supplier, or prospective supplier, of the goods or services; and

the call is not of a kind specified in the regulations.

4 Educational institutions

Relevant account-holder is a householder

Relevant account-holder is an employer

Note: Clause 7 provides for an extended meaning of employee and employer.

(1) For the purposes of this Act, a telemarketing call is a designated telemarketing call if:

the making of the call is authorised by an educational institution; and

the call is made to a number that is used or maintained primarily for the private or domestic purposes of the relevant account-holder and/or members of the relevant account-holder’s household; and

either or both of the following subparagraphs apply:

the relevant account-holder is, or has been, enrolled as a student in that institution;

a member or former member of the relevant account-holder’s household is, or has been, enrolled as a student in that institution; and

if the call relates to goods or services—the institution is the supplier, or prospective supplier, of the goods or services; and

the call is not of a kind specified in the regulations.

(2) For the purposes of this Act, a telemarketing call is a designated telemarketing call if:

the making of the call is authorised by an educational institution; and

the relevant account-holder is the employer of an employee; and

the call is made to a number that is used or maintained primarily for the private or domestic purposes of the employee and/or members of the employee’s household; and

either or both of the following subparagraphs apply:

the employee is, or has been, enrolled as a student in that institution;

a member or former member of the employee’s household is, or has been, enrolled as a student in that institution; and

if the call relates to goods or services—the institution is the supplier, or prospective supplier, of the goods or services; and

the call is not of a kind specified in the regulations.

5 Regulations

The regulations may provide that a specified kind of telemarketing call is a designated telemarketing call for the purposes of this Act.

6 Authorising the making of telemarketing calls

Attribution of authorisation to organisation

then:

Self-authorisation

the first-mentioned individual or organisation is taken to authorise the making of the call.

For the purposes of this Schedule (including subclause (2)), if:

an individual authorises the making of a telemarketing call; and

the individual does so on behalf of an organisation;

the organisation is taken to authorise the making of the call; and

the individual is taken not to authorise the making of the call.

For the purposes of this Schedule, if:

a telemarketing call is made by an individual or organisation; and

the making of the call is not authorised by any other individual or organisation;

7 Extended meaning of employee and employer

Member of the executive body of a body corporate

Contractor

Member of parliament

Member of local governing body

Officeholder etc.

the individual is taken to be an employee of the Commonwealth, the State or the Territory, as the case requires.

For the purposes of clause 4, if an individual is a member of the executive body (whether described as the board of directors or otherwise) of a body corporate, the individual is taken to be an employee of the body corporate.

For the purposes of clause 4, if an individual works under a contract that is wholly or principally for the labour of the individual, the individual is taken to be an employee of the other party to the contract.

For the purposes of clause 4, if an individual is a member of the Parliament of the Commonwealth, the individual is taken to be an employee of the Commonwealth.

For the purposes of clause 4, if an individual is a member of the parliament of a State, the individual is taken to be an employee of the State.

For the purposes of clause 4, if an individual is a member of the Legislative Assembly for the Australian Capital Territory, the individual is taken to be an employee of the Australian Capital Territory.

For the purposes of clause 4, if an individual is a member of the Legislative Assembly of the Northern Territory, the individual is taken to be an employee of the Northern Territory.

For the purposes of clause 4, if an individual is a member of a local governing body established by or under a law of a State or Territory, the individual is taken to be an employee of that body.

For the purposes of clause 4, if an individual:

holds, or performs the duties of, an appointment, office or position under the Constitution or under a law of the Commonwealth, of a State or of a Territory; or

is otherwise in the service of the Commonwealth, of a State or of a Territory (including service as a member of the Defence Force or as a member of a police force);

A—Designated marketing faxes

Note: See section 4.

1 Object

The object of this Schedule is to define the expression designated marketing fax.

Note: Designated marketing faxes are exempt from section 12B (unsolicited marketing faxes must not be sent to a number registered on the Do Not Call Register).

2 Government bodies and charities

For the purposes of this Act, a marketing fax is a designated marketing fax if:

the sending of the fax is authorised by either of the following bodies:

a government body;

a registered charity; and

if the fax relates to goods or services—the body is the supplier, or prospective supplier, of the goods or services; and

the fax is not of a kind specified in the regulations.

3 Political parties, independent members of parliament, candidates etc.

Political parties

it would be concluded that the purpose, or one of the purposes, of the fax is:

Independent members of parliament etc.

and who is not affiliated with any registered political party; and

it would be concluded that the purpose, or one of the purposes, of the fax is:

Candidates

it would be concluded that the purpose, or one of the purposes, of the fax is:

(1) For the purposes of this Act, a marketing fax is a designated marketing fax if:

the sending of the fax is authorised by a registered political party; and

having regard to:

the content of the fax; and

the presentational aspects of the fax;

iii

to conduct fund-raising for electoral purposes; or

to conduct fund-raising for political purposes; and

if the fax relates to goods or services—the registered political party is the supplier, or prospective supplier, of the goods or services; and

the fax is not of a kind specified in the regulations.

(2) For the purposes of this Act, a marketing fax is a designated marketing fax if:

the sending of the fax is authorised by a person who is a member of:

the Parliament of the Commonwealth; or

the parliament of a State; or

iii

the Legislative Assembly for the Australian Capital Territory; or

the Legislative Assembly of the Northern Territory; or

a local governing body established by or under a law of a State or a Territory;

having regard to:

the content of the fax; and

the presentational aspects of the fax;

iii

to conduct fund-raising for electoral purposes; or

to conduct fund-raising for political purposes; and

if the fax relates to goods or services—the person is the supplier, or prospective supplier, of the goods or services; and

the fax is not of a kind specified in the regulations.

(3) For the purposes of this Act, a marketing fax is a designated marketing fax if:

the sending of the fax is authorised by a person who is a candidate in an election for:

the House of Representatives; or

the Senate; or

iii

a house of the parliament of a State; or

the Legislative Assembly for the Australian Capital Territory; or

the Legislative Assembly of the Northern Territory; or

vii

a local governing body established by or under a law of a State or a Territory; and

having regard to:

the content of the fax; and

the presentational aspects of the fax;

iii

to conduct fund-raising for electoral purposes; or

to conduct fund-raising for political purposes; and

if the fax relates to goods or services—the person is the supplier, or prospective supplier, of the goods or services; and

the fax is not of a kind specified in the regulations.

4 Educational institutions

Relevant account-holder is a householder

Relevant account-holder is an employer

Note: Clause 7 provides for an extended meaning of employee and employer.

(1) For the purposes of this Act, a marketing fax is a designated marketing fax if:

the sending of the fax is authorised by an educational institution; and

the fax is sent to a number that is used or maintained primarily for the private or domestic purposes of the relevant account-holder and/or members of the relevant account-holder’s household; and

either or both of the following subparagraphs apply:

the relevant account-holder is, or has been, enrolled as a student in that institution;

a member or former member of the relevant account-holder’s household is, or has been, enrolled as a student in that institution; and

if the fax relates to goods or services—the institution is the supplier, or prospective supplier, of the goods or services; and

the fax is not of a kind specified in the regulations.

(2) For the purposes of this Act, a marketing fax is a designated marketing fax if:

the sending of the fax is authorised by an educational institution; and

the relevant account-holder is the employer of an employee; and

the fax is sent to a number that is used or maintained primarily for the private or domestic purposes of the employee and/or members of the employee’s household; and

either or both of the following subparagraphs apply:

the employee is, or has been, enrolled as a student in that institution;

a member or former member of the employee’s household is, or has been, enrolled as a student in that institution; and

if the fax relates to goods or services—the institution is the supplier, or prospective supplier, of the goods or services; and

the fax is not of a kind specified in the regulations.

5 Regulations

The regulations may provide that a specified kind of marketing fax is a designated marketing fax for the purposes of this Act.

6 Authorising the sending of marketing faxes

Attribution of authorisation to organisation

then:

Self-authorisation

the first-mentioned individual or organisation is taken to authorise the sending of the fax.

For the purposes of this Schedule (including subclause (2)), if:

an individual authorises the sending of a marketing fax; and

the individual does so on behalf of an organisation;

the organisation is taken to authorise the sending of the fax; and

the individual is taken not to authorise the sending of the fax.

For the purposes of this Schedule, if:

a marketing fax is sent by an individual or organisation; and

the sending of the fax is not authorised by any other individual or organisation;

7 Extended meaning of employee and employer

Member of the executive body of a body corporate

Contractor

Member of parliament

Member of local governing body

Officeholder etc.

the individual is taken to be an employee of the Commonwealth, the State or the Territory, as the case requires.

For the purposes of clause 4, if an individual is a member of the Parliament of the Commonwealth, the individual is taken to be an employee of the Commonwealth.

For the purposes of clause 4, if an individual is a member of the parliament of a State, the individual is taken to be an employee of the State.

For the purposes of clause 4, if an individual is a member of the Legislative Assembly of the Northern Territory, the individual is taken to be an employee of the Northern Territory.

For the purposes of clause 4, if an individual is a member of a local governing body established by or under a law of a State or Territory, the individual is taken to be an employee of that body.

For the purposes of clause 4, if an individual:

holds, or performs the duties of, an appointment, office or position under the Constitution or under a law of the Commonwealth, of a State or of a Territory; or

is otherwise in the service of the Commonwealth, of a State or of a Territory (including service as a member of the Defence Force or as a member of a police force);

Consent

Note: See section 4.

1 Object

The object of this Schedule is to define the expression consent when used in relation to the making of a telemarketing call or the sending of a marketing fax.

Note: The concept of consent is relevant to section 11 (unsolicited telemarketing calls must not be made to a number registered on the Do Not Call Register) and section 12B (unsolicited marketing faxes must not be sent to a number registered on the Do Not Call Register).

2 Basic definition

For the purposes of this Act, consent means:

of the individual or organisation concerned.

express consent; or

consent that can reasonably be inferred from:

the conduct; and

the business and other relationships;

3 Duration of express consent

For the purposes of this Act, if:

the consent is taken to have been withdrawn at the end of the period of 3 months beginning on the day on which the consent was given.

express consent is given; and

the consent is not expressed to be for a specified period or for an indefinite period;

4 Consent may not be inferred from the publication of an Australian number

For the purposes of the application of this Act to an Australian number, consent of:

may not be inferred from the mere fact that the number has been published.

the relevant account-holder; or

a nominee of the relevant account-holder;

5 Regulations about consent 1

The regulations may provide that, for the purposes of the application of this Act to an Australian number, the consent of:

the relevant account-holder; or

a nominee of the relevant account-holder;

may not be inferred in the circumstances specified in the regulations.

may be inferred in the circumstances specified in the regulations.

The regulations may provide that, for the purposes of the application of this Act to an Australian number, the consent of:

the relevant account-holder; or

a nominee of the relevant account-holder;

7 Determinations about consent—marketing faxes sent to business numbers 1

The ACMA may, by legislative instrument, determine that, for the purposes of the application of this Act to a marketing fax sent to a business number, the consent of the relevant account-holder may not be inferred in the circumstances specified in the determination.

The ACMA may, by legislative instrument, determine that, for the purposes of the application of this Act to a marketing fax sent to a business number, the consent of the relevant account-holder may be inferred in the circumstances specified in the determination.

Before making a determination under subclause (1) or (2), the ACMA must consult the Minister.

Before making a determination under subclause (1) or (2), the ACMA must:

publish on its website a notice:

setting out a draft of the determination; and

inviting persons to make submissions to the ACMA about the draft determination within 14 days after the notice is published; and

consider any submissions received within the 14-day period.

(5) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a power conferred on the ACMA by subclause (1) or (2). However, if a variation of a determination under subclause (1) or (2) is a variation of a minor nature, the ACMA is not required to comply with subclause (3) or (4) in relation to the variation.

If a determination under subclause (1) or (2) of this clause is inconsistent with regulations made for the purposes of clause 5, the determination has no effect to the extent of the inconsistency.

Infringement notices

Note: See section 32.

1 Object

The object of this Schedule is to set up a system of infringement notices for contraventions of civil penalty provisions as an alternative to the institution of proceedings in the Federal Court or the Federal Circuit and Family Court of Australia (Division 2).

2 When an infringement notice can be given 1

If an authorised officer has reasonable grounds to believe that a person has, on a particular day, committed one or more contraventions of a particular civil penalty provision, the authorised officer may give to the person an infringement notice relating to those contraventions.

An infringement notice must be given within 12 months after the day on which the civil contraventions are alleged to have taken place.

Subclause (2) does not apply to a contravention of subsection 12(1) or (2) or 12C(1) or (2).

Note 1: Section 12 deals with agreements for the making of telemarketing calls.

Note 2: Section 12C deals with agreements for the sending of marketing faxes.

This clause does not authorise the giving of 2 or more infringement notices to a person in relation to contraventions of a particular civil penalty provision that allegedly occurred on the same day.

3 Matters to be included in an infringement notice 1

An infringement notice must:

set out the name of the person to whom the notice is given; and

set out the name of the authorised officer who gave the notice; and

either:

set out brief details of each of the alleged civil contraventions; or

be accompanied by one or more data processing devices that contain, in electronic form, brief details of each of the alleged civil contraventions; and

contain a statement to the effect that the matter or matters will not be dealt with by the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) if the penalty specified in the notice is paid to the ACMA, on behalf of the Commonwealth, within:

28 days after the notice is given; or

if the ACMA allows a longer period—that longer period; and

give an explanation of how payment of the penalty is to be made; and

set out such other matters (if any) as are specified by the regulations.

Note: For the amount of penalty, see clause 4.

For the purposes of paragraph (1)(c), the brief details must include the following information in relation to each alleged civil contravention:

the date of the alleged contravention;

the civil penalty provision that was allegedly contravened.

Subparagraph (1)(c)(ii) does not authorise the inclusion of information in a data processing device unless, at the time the infringement notice was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference.

(4) This clause does not limit the operation of the Electronic Transactions Act 1999.

4 Amount of penalty

Infringement notice given to a body corporate

Infringement notice given to a person other than a body corporate

The penalty to be specified in an infringement notice given to a body corporate must be a pecuniary penalty equal to the number of penalty units worked out using the table:

The penalty to be specified in an infringement notice given to a person other than a body corporate must be a pecuniary penalty equal to the number of penalty units worked out using the table:

5 Withdrawal of an infringement notice 1

This clause applies if an infringement notice is given to a person.

(2) An authorised officer may, by written notice (the withdrawal notice) given to the person, withdraw the infringement notice.

To be effective, the withdrawal notice must be given to the person within 28 days after the infringement notice was given.

Refund of penalty if infringement notice withdrawn

the Commonwealth is liable to refund the penalty.

If:

the penalty specified in the infringement notice is paid; and

the infringement notice is withdrawn after the penalty is paid;

6 What happens if the penalty is paid 1

This clause applies if:

an infringement notice relating to one or more alleged civil contraventions is given to a person; and

the penalty is paid in accordance with the infringement notice; and

the infringement notice is not withdrawn.

Any liability of the person for the alleged civil contraventions is discharged.

Proceedings under Part 4 may not be brought against the person for the alleged civil contraventions.

7 Effect of this Schedule on civil proceedings

This Schedule does not:

require an infringement notice to be given in relation to an alleged civil contravention; or

affect the liability of a person to have proceedings under Part 4 brought against the person for an alleged civil contravention if:

the person does not comply with an infringement notice relating to the contravention; or

an infringement notice relating to the contravention is not given to the person; or

iii

an infringement notice relating to the contravention is given to the person and subsequently withdrawn; or

limit the discretion of the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) to determine the amount of a penalty to be imposed on a person who is found in proceedings under Part 4 to have committed a civil contravention.

8 Appointment of authorised officer

The ACMA may, by writing, appoint a member of the staff of the ACMA as an authorised officer for the purposes of this Schedule.

9 Regulations

The regulations may make further provision in relation to infringement notices.

Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history