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Australia
This page considers the Australian Do Not Call Registry
scheme.
It covers -
introduction
The Australian regime centres on the Do Not Call Register
Act 2006, which establishes a national register that
allows consumers to opt out of calls by some businesses.
As of May 2008 over 2.3 million numbers were on the register,
an indication of substantial community support.
The register scheme, in effect from May 2007, features
a code of practice for telemarketers (discussed in the
following page of this note).
The scheme is however -
-
weakened by a range of exclusions (eg cold calling by
political parties and charities is permitted)
-
does not protect small businesses
-
provides no protection for calls originating overseas.
Worryingly,
pressure from industry has resulted in early erosion,
with ACMA for example announcing in late May 2007 that
research calls would be permitted on Sundays.
development
As of 2005 Australia did not have a national Do Not Call
Registry, with regulation of telemarketing/research being
covered in principle by -
- the
national Privacy Act
(with Principles for personal information is collection,
recording, use, personal access to and disclosure of
personal information), albeit with significant exclusions
- the
national Spam Act 2003,
covering commercial electronic messages including SMS
but not voice calls
- New
South Wales and Victorian state 'Fair Trading' (consumer
protection) legislation governing local telemarketing
and door-to-door sales, under review as part of a Telemarketing
Regulation Harmonisation Review ;
- the
ACIF Code on Handling of Life Threatening and Unwelcome
Calls (C525:2002), with a procedure for handling
repeated unwelcome calls
- s474.17
of the national Criminal Code Act 1995, with
an offence of using a carriage service in a way that
a reasonable person would regard as being menacing,
harassing or offensive;
- s52
of the national Trade Practices Act 1974, prohibiting
corporations (but not other entities) from engaging
in conduct that is, or is likely to be, misleading or
deceptive.
A
discussion paper was released
by the federal Minister for Communications, IT & the
Arts in November 2005. In early 2006 the government announced
that it would establish a Registry, albeit with substantial
exclusions.
During the 2004 federal election the ALP reflected suggestions
by the Ministerial Council on Consumer Affairs in calling
for a US-style registry, to be managed by the Australian
Communications & Media Authority (ACMA). The proposed
regime would include a ban on all unsolicited consumer
telemarketing on public holidays and sundays. It was assailed
by some telemarketers as resulting in "huge job losses"
or "the last days of telemarketing".
The registry proposed by the ALP was to supersede private
lists such as that under the auspices of the Australian
Direct Marketing Association (ADMA), which in July 2004
claimed that the US government
is
facing an administrative and financial nightmare as
it is now dealing with a disgruntled and disillusioned
public and costs that are spiralling out of control.
The
Australian Market & Social Research Society, representing
businesses in the market research sector, noted
that
It
is very common for the Society to find that people are
complaining about telemarketing and that the first opportunity
they have had to express their concerns is when a research
company has provided them with the 1300 number. ...
They are just sick of the volume of unsolicited calls
in general, and of being pursued to buy things in particular.
It
was unclear whether the Australian legislation proposed
in 2005 would restrict cold calling by non-profit organisations
and political entities - consistent with loopholes in
the Spam Act 2003 and the Privacy Act
- and substantially strengthen existing Trade Practices
Act restrictions on misleading representations (eg
offering goods/services under the guise of market research).
Proponents of self-regulation noted that consumers could
use the non-mandatory registry
maintained by ADMA. That registry does not cover all marketers
- many organisations are not ADMA members. ADMA noted
that its scheme does "not cover telephone calls from
market research firms, real estate agents and local businesses".
The October 2005 Introduction of a Do Not Call Register:
Possible Australian model discussion paper (PDF)
reflected criticisms of telemarketing in the federal Privacy
Commissioner's Getting in on the Act: The Review of
the Private Sector Provisions of the Privacy Act 1988
report and the Senate Legal & Constitutional References
Committee's The Real Big Brother: Inquiry into the
Privacy Act 1988 report. The discussion paper elicited
some 495 submissions
(an aggregate 1,171 pages).
In following up the discussion paper the Government promoted
the Do Not Call Register Bill 2006 (PDF).
That Bill was supported by the Do Not Call Register
(Consequential Amendments) Bill 2006 (PDF).
The legislation passed in June 2006. It was extended in
2010 through the Do Not Call Register Legislation
Amendment Act 2010 (Cth), which covers fax messages.
the legislation
The Do Not Call Register Act 2006 and associated
Do Not Call Register (Consequential Amendments) Act
2006 provide for a national Do Not Call Register
regime that is broadly similar to the Spam regime discussed
elsewhere on this site.
Communications Minister Helen Coonan commented that
This
legislation responds directly to the increasing level
of community concern about the exponential growth in
unsolicited telemarketing calls. ... Based on overseas
experience, we expect that there will be a high level
of demand from individuals who wish to place their numbers
on the Register - as many as one million numbers are
expected to be registered in the first week alone.
The Act requires the Australian Communications & Media
Authority (ACMA)
- the federal government's telecommunications regulatory
agency - to establish a national Do Not Call Register.
The Do Not Call Register (Consequential Amendments)
Act 2006 covers development of industry codes and
standards regarding telemarketing calls by/on behalf of
Australian entities. It requires ACMA to mandate national
standards regulating the making of all telemarketing calls
by those entities. The standards will relate to matters
such as the time at which telemarketing calls may be made,
the information which must be provided and the termination
of calls. The standards will apply to all the telemarketers,
including those exempt from the Do Not Call Register arrangements.
Individuals are charged for inclusion of their numbers
on the Register, with funding instead provided by the
telemarketing industry (expected to contribute $15.9 million
over four years) and the federal government (spending
around $17 million towards the cost of establishing the
Register).
In November 2006 ACMA warned consumers to be wary of offers
by scammer to register their details on the national Do
Not Call Register and charge them for the service.
coverage
The 2006 scheme covers residential landline and mobile
numbers. It does not cover small business or institutional
numbers, despite claims by small business representatives
that handling unsolicited calls is a substantial cost
for those enterprises.
As with the Spam Act, the legislation covers
calls by or on behalf of Australian entitities (including
calls made by an overseas call centre for an Australian
business). The scheme does not cover overseas entities
that are independent of an Australian organisation and
that are not calling on behalf of such an organisation.
Overseas marketers will continue to call Australian numbers,
whether on the basis of details purchased from colour
pages vendors and other data brokers or by using sequential
dialling systems (progressively ringing all numbers).
Enforcement is explored in an ACMA discussion paper (txt)
released in August 2006.
In April 2010 ACMA noted that -
More than 40 percent of all Australian mobile and land
line phone numbers listed on the Do Not Call Register
in May 2007 have been re-registered ... ACMA Chairman
Chris Chapman said more than 39 per cent of land line
phone numbers and almost 43 per cent of mobile phone
numbers have been re-registered. 'This is a fantastic
result. It sends a strong message - Australians
want the option to block unwanted telemarketing calls
and not be interrupted on the home phone or the mobile',
he said. Nearly 4.7 million home, mobile and VoIP numbers
are currently listed on the Do Not Call Register. When
the register was launched in May 2007, around 1.04 million
numbers were registered in that month alone.
That
uptake might lead observers to question the hyperbole
from some marketers, who claimed that the register was
not needed, would not work and would be shunned by consumers.
exclusions
The scheme features a number of exclusions and is narrower
than the UK regime.
Coonan commented that
In
creating a Register we need to ensure there is an appropriate
balance between the rights of an individual to privacy
and the needs for businesses to promote their products
and services. In light of this and following further
consultation, the Government has decided not to include
small businesses on the Register. Businesses contact
each other for a multitude of reasons in the course
of day to day operations, and the Government was concerned
not to potentially expose organisations to fines and
penalties for ordinary business-to-business contact.
Exemptions are provided for certain types of telemarketing
calls, such as calls from -
- charities
- religious
organisations
- registered
political parties
-
independent Members of Parliament and candidates
- educational
institutions (where the call is made to a student or
alumni)
-
government bodies.
The exemptions are
important
to allow these organisations, who carry out activities
in the public interest, to be able to continue to provide
services to the community
As
noted above, the legislation covers 'private' numbers:
it does not seek to protect small businesses and institutions.
Regulations made in December 2006 under the Do Not
Call Register Act 2006 specify that particular categories
of calls are not telemarketing calls for the purposes
of that Act. Those categories feature opportunities for
the caller to engage in 'stealth' marketing as part of
a call that is primarily concerned with alerting the recipient
to a problem.
They include -
- product
recall calls (eg if the primary purpose of the call
is to alert the consumer that goods have been recalled
by the manufacturer)
- fault
rectification calls
- appointment
rescheduling calls
- appointment
reminder calls
- calls
relating to payments
- calls
that are not answered by the person to whom the call
is made.
Under
fault rectification, for example an electricity provider
calling to alert the customer to a fault with that customer’s
electricity service would be authorised to discuss the
financial benefits of bundling other services.
enforcement
As with the Spam Act, ACMA will be responsible
for the enforcement of the legislation and a range of
penalties will be available depending on the nature of
the breach.
ACMA will be able to issue formal warnings or infringement
notices or commence court proceedings. Federal courts
will be able to impose fines ranging from $1,100 to $1.1
million, with the highest penalties targeted at entities
that recurrently breach the legislation.
In practice success of the regime is dependent on -
- consumers
alerting ACMA when businesses breach the legislation
and the telemarketing code
- ACMA
actively pursuing such businesses, with exemplary prosecutions
(and well-publicised substantial penalties) to alert
all organisations
In
October 2008 ACMA hit telecommunications provider Dodo
Australia with a penalty of $147,400 after allegations
that an offshore call centre made telemarketing calls
on Dodo's behalf to numbers on the Do Not Call Register.
In 2010 ACMA penalised Queensland real estate agency Bruce
Harry Real Estate $6,600 for making three calls to numbers
on the Do Not Call Register, commenting that -
This
penalty serves as a warning to others. It’s easy
to check numbers against the register, so there really
isn’t any excuse for bothering people who have
registered. What
was particularly concerning about this case was that
Bruce Harry Real Estate agents at Holland Park continued
to call numbers on the Do Not Call Register even after
the ACMA advised them to change their practices ...
The company also made a call on a Sunday, which is a
breach of the Telemarketing Industry Standard.
adding your number
This site is entirely independent of the Register: it
offers analysis and context but is not
the operator of the Australian Do Not Call scheme.
If you want to get your number onto the Register you can
do that by phone (call 1300 792 958), by post, by fax
or online at
donotcall.gov.au, a location that is independent of
this site.
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