Legal briefing No. 81

Number 81

14 May 2007

Nathan Simmons

Nathan Simmons Lawyer
T 07 3360 5681
F 07 3360 5669
nathan.simmons@ags.gov.au

Jeff Cranston

Jeff Cranston Senior
Executive Lawyer
T 03 9242 1367
F 03 9242 1496
jeff.cranston@ags.gov.au

The law in relation to unsolicited communications,
such as commercial electronic messages and telemarketing
calls, continues to develop at a rapid rate. This briefing
discusses the implications of the first successful civil
penalty proceedings under the Spam Act 2003, followed
by an overview of the national Do Not Call Register scheme.

These developments are of significance to all government
agencies, including those agencies that might not consider
themselves to be involved in unsolicited marketing.

Commercial electronic messages: complying
with the Spam Act

The decision in Australian Communications and Media
Authority v Clarity1 Pty Ltd and Anor (2006) 150
FCR 494; [2006] FCA 410 (Clarity1) is the first
significant decision dealing with the Spam Act 2003.
It highlights the potential dangers to both government
bodies and their employees individually in failing to
comply with the provisions of the Act.1

The decision

The decision in Clarity1 on 13 April 2006 came
almost exactly two years after the Spam Act 2003 (the
Act) came into force.2 The case involved an
application by the Australian Communications and Media
Authority (ACMA) to the Federal Court for orders under
ss 24, 29 and 32 of the Act, seeking declaratory relief
and pecuniary penalties in respect of breaches of certain
of the Act's civil penalty provisions. These breaches
related to the sending of unsolicited commercial electronic
messages (CEMs)3 by Clarity1 Pty Ltd. Nicholson
J found that the company, in contravention of the Act,
had successfully sent tens of millions of messages to recipients
whose email addresses had been obtained by the use of harvested
address lists. He ordered that the company pay penalties
of $4.5 million.4

The company's director, Wayne Mansfield, was found
to have been knowingly concerned in the company's
breaches of the Act as an accessory and was ordered to
pay substantial penalties of $1 million.5

Clarity1 and Mansfield (the respondents) raised a number
of defences which were ultimately unsuccessful. The court's
reasoning in dealing with these defences highlights the
potential dangers in sending commercial electronic messages.

Consent

The respondents contended that, on a number of grounds,
the relevant electronic account-holders consented to the
sending of the CEMs. This consent was said by the respondents
to arise in several possible ways:

Firstly, by the inclusion in the CEMs of an 'unsubscribe
facility', which allowed recipients to 'opt
out' from receipt of further messages. The failure
by recipients to utilise that feature was said to support
an inference that the recipients consented to the receipt
of the messages.

Secondly, by the alleged existence of a business relationship
between the company and the various recipients.

Thirdly, because the recipients published their electronic
addresses on the Internet.

The respondents failed to present evidence concerning
consent given by individual account holders,6 and
asked the court to draw inferences that the recipients
of the relevant electronic accounts had consented to the
receipt of the CEMs. Each of the respondents' main
submissions is considered in turn.

Unsubscribe facility

As Nicholson J noted, section 18 of the Act requires the
inclusion of an unsubscribe facility in CEMs. To that extent,
the respondents had complied with the Act (although no
relief was sought in relation to that issue).

The respondents sought to argue that consent to receiving
the CEMs should be inferred from the failure of the recipients
to use the unsubscribe facility. They relied on material
in the Guidelines to the National Privacy Principles,
produced by the Office of the Privacy Commissioner, in
which the Privacy Commissioner had suggested that 'it
may be possible to infer consent from the individual's
failure to opt out provided that the option to opt out
was clearly and prominently presented and easy to take
up'.

Nicholson J rejected this argument, finding that non-legislative
guidelines cannot assist in the interpretation of Acts
of Parliament.7 More importantly, Nicholson
J held that the mere presence of an unsubscribe facility
in a CEM does not provide any foundation to support an
inference that the recipient consented to the message by
failing to utilise the facility. The recipients of CEMs
may have used a variety of methods to dispose of the messages
without being aware of their contents, and on that basis
an inference was equally open that the recipient was unaware
of the availability of such a facility.8 Alternately,
evidence was tendered that use of such facilities may increase
future propensity to receiving unwanted CEMs, as unsubscribe
facilities have been used by unscrupulous entities to confirm
valid email addresses.

The respondents' contentions were further hampered
by the lack of identification of the company responsible
for the CEMs, as well as a failure to adequately explain
the high numbers of messages sent, or the sophisticated
software utilised by them to make the messages appear more
legitimate to recipients.

Existing business relationship

A further argument advanced by the respondents was that
consent could be inferred because of an alleged business
relationship between them and the recipients of CEMs.

Nicholson J rejected this argument, finding that the act
of sending the CEMs could not in itself give rise to a
business relationship sufficient to imply consent. A relationship
connotes more than unilateral communication from one party
to another.9

However, it should be noted that Nicholson J also held
that ordinarily a contract of purchase by way of email
order is sufficient to constitute a business relationship,
such that (in the absence of contrary evidence) the consent
of the purchaser to receive further CEMs about the vendor's
business could be inferred.10

Publication of addresses on the Internet

As referred to in the judgment, the Act specifically provides
that publication of addresses on the Internet does not
support an inference of consent: clause 4(1) of Schedule
2 to the Act.11

The respondents argued that the addresses to which CEMs
were sent satisfied the criteria of conspicuously-published
addresses under clause 4(2) of Schedule 2 to the Act and
that therefore consent to receiving the CEMs could be inferred.

However, Nicholson J held that a number of elements needed
to be satisfied by the respondents in order to make out
the defence of conspicuous publication under clause 4(2),
and that they had failed to produce any evidence to satisfy
the evidential burden upon them.12

His Honour also held that from the sheer volume of addresses
kept, it was inferable that at the time of compilation
Clarity1 did not consider whether the publication of electronic
addresses on the Internet was done in circumstances meeting
the criteria in clause 4 of Schedule 2 so as to afford
the defence of conspicuous publication.13

Relevance for agencies – consent

Although it is difficult to imagine any government body
sending unsolicited CEMs on the scale of the respondents
in the Clarity1 case, the principles expounded by
Nicholson J remain relevant to more modest operations.

Nicholson J held that, except in the case of people who
had actively engaged the services of the corporate respondent,
consent to receipt of the CEMs could not be inferred.14

Where government bodies are sending messages that may
be CEMs, caution should be taken to ensure that the lists
of intended recipients are restricted to people who have
expressly requested that such information be sent to them,
or who, by virtue of an existing business relationship
it can readily be inferred would wish to be kept abreast
of the content of the CEMs.

Further, the mere presence of an unsubscribe facility
within the CEM itself is insufficient, without anything
further, to protect against the operation of s 16 of the
Act, although it is mandatory for CEMs to include such
a facility.

It is also important for government bodies to be aware
of the sources of any email address lists used in sending
CEMs. Using lists compiled by means of address-harvesting
software (even by third parties), will contravene the Act.
If government bodies are utilising such lists, or considering
purchasing email lists, careful consideration is required
as to the provenance of the email addresses. Where the
list is being supplied by a third party, warranties as
to compliance with the Act should be considered.

Potential liability of individuals

A further notable feature in Clarity1 was that
an individual, being a director of the corporate respondent,
was found personally liable as an accessory under ss 16(9)
and 22(3) for the company's breaches of ss 16(1)
and 22(1) respectively of the Act. Nicholson J applied Hamilton
v Whitehead (1988) 166 CLR 121, holding that since
that case it is clear that the conduct of a person may
result in liability being imposed on a company as the principal
offender, as well as liability being imposed on that individual
person as an accessory.15

Nicholson J found that Mr Mansfield, as sole director
of Clarity1, was responsible for, and was at all relevant
times fully aware of, the business carried on by the company.16 Further,
he found that Mr Mansfield intentionally participated in,
and knew the essential elements of, Clarity1's conduct,
including the conduct which had been found to contravene
ss 16(1) and 22(1) of the Act.17

Mr Mansfield had argued that under s 8(1) of the Act,
it was the company, and not him as an individual, that
had authorised sending of the CEMs, and therefore he had
no case to answer. Nicholson J rejected this submission,
holding that even if s 8(1) applies to result in the finding
that Mr Mansfield did not authorise the sending of the
electronic message, that cannot protect him against the
application of the two subsections providing for accessorial
liability (16(9) and 22(3)). The fact that s 8(1) may have
the consequence that he is not to be taken to have authorised the
sending does not answer the question raised by the two
subsections on whether he participated in the sending
of the message in any of the relevant ways. There was no
inconsistency between s 8(1) and ss 16(9) and 22(3).18

Nicholson J also rejected Mr Mansfield's argument
that he should not be found liable as an accessory as he
had at no time acted in his own right. It was sufficient
that he acted as a director and was the actor in the conduct.
For him to be 'knowingly concerned' it is not
necessary for him to be acting only 'in his own right'.
The essential question in either case is whether he was,
on the evidence, 'knowingly concerned' as that
phrase and associated descriptions in the two subsections
are understood at law.19

For government bodies, this raises the prospect that where
individual employees are involved in the sending of CEMs,
even if such sending is at the request or direction of
another, they may be found to be personally liable for
a contravention of the Act. According to Nicholson J, individuals
involved in the sending of CEMs should take care to ensure
that the relevant provisions of the Act are being complied
with. From a practical standpoint, this is most effectively
ensured by the relevant employees being aware of the legislative
provisions, and the organisation having an effective policy
or checklist in relation to the sending of CEMs.

Penalty

Following further submissions, Nicholson J imposed pecuniary
penalties of $4.5 million in respect of the corporate respondent,
and $1 million in respect of the individual director. Injunctive
relief was also sought and granted against the further
sending of CEMs by the respondents, and against the use
of the harvested-address lists.20
Nicholson J expressly noted that the penalties were fixed
with a view to factors such as the parliamentary intention
of imposing penalties of marked general deterrence (the
maximum available in this case amounting to $99 million
for the corporate respondent and $19.8 million for the
individual director), the nature and extent of the contraventions,
the specific deterrence of the respondents, and the commercial
realism of the particular circumstances of the matter,
as well as the innovative nature of the legislation at
the time of the offences.21

Individuals found to have contravened the Act (even in
the course of their employment) might face similar penalties
to those imposed against the director in the Clarity1 case.
On the evidence before the court, the contravening conduct
generated only minor income for the respondents and the
director was found to have only limited assets. The substantial
penalties imposed in this case ought therefore be seen
to be aimed at promoting general deterrence.

Clarity1 and government bodies

It is important for government bodies to understand their
obligations not only against the background of the Clarity1 case
but also with regard to the special considerations that
apply to them.22

It should be noted that under the Spam Act it is not open
to the court to impose pecuniary penalties on Crown departments
and agencies,23 although declarations can still
be made. However, by contrast, pecuniary penalties may
still be imposed on Crown authorities, such as a
Commonwealth statutory authority that (under the relevant
legislation establishing the authority) is a separate legal
entity from the Crown.24

In cases where a government body is shown to have contravened
the Act and it is open to the court to impose pecuniary
penalties, it is possible that the court would impose substantial
penalties owing to the high expectations placed on such
bodies in respect of compliance with the Act.

The Clarity1 case highlights a number of the concerns
previously raised in AGS Commercial
Notes No. 9 (6 April 2004)
. Although the decision
occurred in the context of a commercial business sending
extreme volumes of CEMs, government bodies should nevertheless
reassess whether their current practices in relation to
the sending of CEMs are sufficient to prevent contraventions
of the Spam Act.

Nathan Simmons works across a range of revenue
and regulatory practice areas with a particular focus
on taxation litiga-tion matters. Nathan has also provided
advice on, and assistance with, the preparation of search
warrants and access orders in relation to proceedings
under the Spam Act 2003.

Jeff Cranston has extensive experience acting
for and advising Commonwealth clients in relation to
regulatory and quasi-criminal matters. This work has
included providing advice on civil penalty proceedings
under the Spam Act 2003 and handling litigation
in the AAT and the Federal Court in cases concerning
decisions under the Radiocommunications Act 1992.

Notes

  1. Consideration of these issues was discussed in AGS Commercial
    Notes No. 9, 6 April 2004
    , 'The Spam
    Act' pp 8–11.
  2. Two other decisions in relation to the matter were
    handed down, reported at [2005] FCA 1161 (in relation
    to the interlocutory injunctions sought by the Australian
    Communications and Media Authority) and [2006] FCA 1399
    (in relation to pecuniary penalties, declarations and
    final injunctions).
  3. CEMs are defined in s 6 of the Act. Section 6(1) effectively
    provides that CEMs are electronic messages (such as emails
    or text messages) with at least one commercial purpose.
    See AGS Commercial
    Notes No. 9, 6 April 2004
    , 'The Spam Act' p
    8.
  4. See [2006] FCA 1399 in relation to the court's
    orders and penalties, especially at [59].
  5. See especially (2006) FCR 494, 520 at [121] and [2006]
    FCA 1399 at [59].
  6. Section 16(5) of the Act provides that the evidential
    burden of showing consent rests with the respondent.
  7. See (2006) 150 FCR 494, 511 at [76].
  8. (2006) 150 FCR 495, 512 at [78]–[80].
  9. See headnote para (3), (2006) 150 FCR 494 at 495 and
    [86]–[98] of the judgment at 513–516.
  10. See headnote para (4), (2006) 150 FCR 494 at 495.
  11. (2006) 150 FCR 494, 502 at [29].
  12. See (2006) 150 FCR 494, 516–517, especially
    [100] and [107].
  13. See headnote para (5), (2006) 150 FCR 494 at 495 and
    [108] of the judgment at 516.
  14. See 'Existing business relationship' at
    p 2 of this issue.
  15. His Honour also refers to the discussion in Australian
    Competition and Consumer Commission v Black on White
    Pty Ltd (2001) 110 FCR 1 at [17]–[19].
  16. See headnote para (8), (2006) 150 FCR 494 at 495 and
    [121] at 520.
  17. (2006) 150 FCR 494, 520 at [121].
  18. See (2006) 150 FCR 494, 520 at [123].
  19. (2006) 150 FCR 494, 520 at [124].
  20. See the Order and Reasons for Judgment of Nicholson
    J, [2006] FCA 1399.
  21. See [2006] FCA 1399 especially [59] of the Reasons
    for Judgment.
  22. See generally the Australian Communications and Media
    Authority publication Spam Act 2003: A practical guide
    for government, which is designed to assist government
    bodies to comply with the Act.
  23. Section 12(2) of the Act.
  24. Section 12(3) of the Act.

The Do Not Call Register scheme: an overview

Nick Wood

Nick Wood Counsel
T 02 6253 7053
F 02 6253 7304
nick.wood@ags.gov.au

Peter Lahy

Peter Lahy Senior
General Counsel
T 02 6253 7085
F 02 6253 7304
peter.lahy@ags.gov.au

Government bodies involved in telemarketing activities
(including surveys and research) either directly or through
contractors, will need to review their policies and contracts.
This article explains why.

Background

The Do Not Call Register Act 2006 (the DNCR Act)
and the Do Not Call Register (Consequential Amendments)
Act 2006 (the DNCR(CA) Act) received Royal Assent on
30 June 2006. Together, these Acts provide for the establishment
and maintenance of a national Do Not Call Register (the
Register) and the making of an industry standard that applies
to participants in each section of the telemarketing industry.

On 22 March 2007, ACMA made the Telecommunications
(Do Not Call Register) (Telemarketing and Research Calls)
Industry Standard 2007.

Rules regulating conduct in relation to the Register will
come into effect on 31 May 2007. The Standard, and rules
regulating conduct in relation to it, will also commence
on that date.

The Register

Establishment of the Register

Section 13 of the DNCR Act provides that ACMA must keep,
or arrange for another person (the register operator) to
keep on behalf of ACMA, a register of telephone numbers
for the purposes of the DNCR Act. The primary purpose of
the Register is to facilitate the prohibition of unsolicited
telemarketing calls, other than 'designated telemarketing
calls'.

Recently ACMA selected a fully-owned subsidiary of Melbourne-based
Service Stream Limited to be the register operator. ACMA
will retain responsibility for overseeing the Register's
operation and investigating breaches of the DNCR Act in
relation to it.

A telephone number1 is eligible to be entered on the Register
if it is Australian, it is used or maintained exclusively
or primarily for private or domestic purposes, and it is
not used or maintained exclusively for transmitting and/or
receiving faxes (s 14). An application for a telephone
number to be entered on the Register may be made to the
register operator by the relevant telephone account-holder
(s 15). Eligible telephone numbers will be entered on the
Register (s 16).

The general prohibition

Section 11 of the DNCR Act generally prohibits a person
from making a 'telemarketing call', or causing
a telemarketing call to be made, to a registered number
unless the call is a 'designated telemarketing call'.
For the purposes of this section, a person 'causes' a
telemarketing call to be made where the person enters into
a contract or arrangement, or arrives at an understanding,
with another person and:

  • under that contract, arrangement or understanding
    the other person undertakes to make, or to cause his
    or her employees or agents to make, telemarketing calls,
    and
  • the other person (or his or her employees or agents)
    gives effect to the contract, arrangement or understanding
    by making the call.

What is a 'telemarketing call'?

A 'telemarketing call' is a voice call to
a telephone number where, having regard to certain things
(including the content of the call), it would be concluded
that the purpose (or one of the purposes) of the call is:

  • to offer to supply goods or services
  • to advertise or promote goods or services
  • to advertise or promote a supplier, or prospective
    supplier, of goods or services
  • to offer to supply land or an interest in land
  • to advertise or promote land or an interest in land
  • to advertise or promote a supplier, or prospective
    supplier, of land or an interest in land
  • to offer to provide a business opportunity or investment
    opportunity
  • to advertise or promote a business opportunity or
    investment opportunity
  • to advertise or promote a provider, or prospective
    provider, of a business opportunity or investment opportunity
  • to solicit donations, or
  • a purpose specified in the regulations.2

What is a 'designated telemarketing call'?

As we indicated above, designated telemarketing calls
are not prohibited.3 In general terms, a 'designated
telemarketing call' includes a telemarketing call
which is authorised by:

  • a government body, religious organisation, or charity
    or charitable institution, and where, if the call relates
    to goods or services, that body is the supplier or prospective
    supplier
  • a registered political party, an independent member
    of a parliament or a local governing body, or a political
    candidate, where the purpose (or one of the purposes)
    of the call is to conduct fund-raising for electoral
    or political purposes, and where, if the call relates
    to goods or services, that person or body is the supplier
    or prospective supplier, or
  • an educational institution (i.e. a pre-school, school,
    college or university) where the call is made to a current
    or previous student's household, and where, if
    the call relates to goods or services, that body is the
    supplier or prospective supplier.

The definition of 'government body' is wide,
and includes a department, agency, authority or instrumentality
of the Commonwealth, a state or a territory.

Exceptions to the general prohibition

In addition to designated marketing calls, the prohibition
on making telemarketing calls does not apply if:

  • the individual consents to the making of the call
  • the telemarketer has accessed the Register and has
    received information in the 30-day period prior to the
    making of the call that the number was not listed on
    the Register
  • the telemarketer has made (or caused to be made) the
    call by mistake
  • the telemarketer has taken reasonable precautions,
    and exercised due diligence, to avoid the contravention.

The telemarketer will bear the evidential burden if it
wishes to rely on any of these exceptions.

A telemarketer who wishes to access the Register may submit
a list of telephone numbers to the register operator. If
the telemarketer has paid the relevant fee, the register
operator will 'wash' that list, by informing
the telemarketer which telephone numbers are, or are not,
registered.

Prohibition against entry into certain telemarketing
arrangements

Section 12 of the DNCR Act prohibits a person entering
into a contract or arrangement, or arriving at an understanding,
with another person whereby that other person undertakes
to make telemarketing calls (or cause their employees or
agents to make telemarketing calls) where:

  • there is a reasonable likelihood that some of those
    calls will be made to telephone numbers that are eligible
    to be registered under the DNCR Act, and
  • the contract, arrangement or understanding does not
    contain an express provision to the effect that the other
    person will comply with the DNCR Act (or, if relevant,
    take all reasonable steps to ensure its employees and
    agents comply with the DNCR Act) in relation to calls
    covered by the contract etc.

Prohibition against certain ancillary actions

Sections 11(7) and 12(2) of the DNCR Act contain ancillary
contravention provisions with respect to the primary prohibitions
against making certain telemarketing calls and entering
into certain telemarketing arrangements. The wording of
these sections is very similar to the wording of the ancillary
contravention provisions set out in the Spam Act 2003.
Accordingly, the approach taken by Nicholson J in ACMA
v Clarity1 Pty Ltd (2006) 150 FCR 494 may be persuasive
to any court determining liability under ss 11(7) or 12(2)
of the DNCR Act. On this basis, employees of government
bodies may incur personal liability if they make or authorise
unlawful calls, even if they do so within their official
capacities (see the discussion at pages 3–4 of this
issue).

Penalties

A range of enforcement powers is available in relation
to the prohibitions in the DNCR Act, including the issue
of formal warnings, the imposition of civil penalties of
up to $1,100,000, orders for the compensation of victims,
orders for the recovery of financial benefits attributable
to contraventions, and injunctions.

The Standard

The DNCR(CA) Act amended, among other Acts, the Telecommunications
Act 1997 (the TelComms Act). ACMA made the Standard
pursuant to new s 125A(1) of the TelComms Act on 22 March
2007. When the Standard comes into effect, it will apply
to all telemarketing calls (as defined in the DNCR Act),
as well as to calls to conduct opinion polling or to
carry out traditional questionnaire-based research (together, 'research
calls'). The TelComms Act does not exclude designated
telemarketing calls (as defined in the DNCR Act) from
the application of the Standard.

The Standard prohibits the making of, the causing to be
made, or the attempt to make, relevant calls at particular
times and on particular days (s 5).4 It also requires particular
information to be provided to people who receive the relevant
calls, including information regarding the caller and any
other person who caused the call to be made (s 6).5 Finally,
the Standard requires calls to be terminated in particular
circumstances (s 7) and requires callers to ensure that
calling line identification is enabled (s 8) with respect
to all calls covered by the Standard.

The Standard sets a minimum standard for conduct
to be observed by people who make telemarketing or research
calls. It expressly allows for the continuing operation
of state or territory laws that are capable of operating
concurrently with the Standard (i.e. to the extent that
those laws impose more onerous restrictions on the making
of calls) (s 9).

The general prohibition

Section 128(1) of the TelComms Act will have the effect
that, when the Standard is registered, each participant
in a particular section of the telemarketing industry must
comply with the Standard. The 'telemarketing industry' is
an industry that involves carrying on a 'telemarketing
activity' (s 7 of the TelComms Act). Until any determination
is made by ACMA under s 110B(3) of the TelComms Act, all
of the persons carrying on, or proposing to carry on, telemarketing
activities constitute a single section of the telemarketing
industry for this purpose (s 110B(2) of the TelComms Act).
If a person is a member of a group that constitutes a section
of the telemarketing industry, the person is a participant
in that section of the telemarketing industry (s 111AA
of the TelComms Act). The definition of telemarketing activity
is wide, and includes using telemarketing calls to solicit
donations, to conduct opinion polling or to carry out standard
questionnaire-based research (s 109B of the TelComms Act).

Prohibition against entry into certain telemarketing
arrangements

Other rules regulating conduct in relation to the Standard
will include new s 139(1) of the TelComms Act, which will
prohibit a person entering into a contract or arrangement,
or arriving at an understanding, with another person whereby:

  • that other person undertakes to carry on one or more
    telemarketing activities
  • the contract, arrangement or understanding does not
    contain an express provision to the effect that the other
    person will comply with Part 6 of the TelComms Act (including
    s 128) in relation to the telemarketing activities covered
    by the contract etc.

Prohibition against certain ancillary actions

When the Standard comes into effect, ss 128(2) and 139(2)
of the TelComms Act will include ancillary contravention
provisions with respect to ss 128(1) and 139(1) in the
same terms as s 11(7) and 12(2) of the DNCR Act. Accordingly,
our comments in relation to those provisions will apply
equally in this context. Contraventions of ss 128 or 139
of the TelComms Act would render a person liable to a pecuniary
penalty per contravention of up to $250,000 or $550,000
respectively.

Implications for government bodies

The DNCR Act and the TelComms Act each bind the Crown
in each of its capacities, although they also each provide
that the Crown cannot be prosecuted for an offence or be
held liable for a pecuniary penalty.

The Register

The DNCR Act exempts most types of telemarketing calls
that are authorised by government bodies from the general
prohibition. For example, telemarketing calls that promote
land or solicit donations will be exempt from the general
prohibition as long as they are authorised by government
bodies. However, telemarketing calls that promote goods
or services will only be exempt from the general prohibition
if the relevant goods or services will be supplied by the
government body that authorises them.

ACMA has not yet released any equivalent to its Spam
Act 2003: A practical guide for government, setting
out the policy issues that should be considered before
relying on the exemptions in the DNCR Act. But it may
do so in the future; the policy issues appear to be similar.

In any event, a government body could still contravene
the DNCR Act in a number of different ways, including:

  • authorising a telemarketing call to a number on the
    Register that relates to goods or services that are (or
    will be) supplied by someone other than the government
    body
  • entering into a contract, agreement, or understanding
    that does not comply with s 12(1) of the DNCR Act
  • contravening one of the relevant ancillary contravention
    provisions set out in ss 11(7) or 12(2) of the DNCR Act
    with respect to a telemarketing call that has not been
    authorised by the government body.

The Standard

A government body must comply with the Standard if it
is a participant in the telemarketing industry. Some government
bodies may not consider themselves to be participants in
the 'telemarketing industry' as that expression
is commonly understood; but it is clear that for the purposes
of the TelComms Act many government bodies will participate
in the telemarketing industry, and those bodies will need
to comply with the Standard.

In particular, it is clear that even if a particular telemarketing
call made by a government body is a 'designated telemarketing
call' within the meaning of the DNCR Act,6 and is
therefore not prohibited by s 11 of that Act, the government
body will still need to comply with the Standard in making
that call (or attempting to make that call).

A government body will also contravene the TelComms Act
by:

  • entering into a contract, agreement, or understanding
    that does not comply with s 139(1) of the TelComms Act,
    or
  • contravening one of the relevant ancillary contravention
    provisions set out in ss 128(2) or 139(2) of the TelComms
    Act.

Concluding remarks

The DNCR Acts scheme will have a significant effect on
the conduct of the telemarketing industry which until this
point has been, for the most part, only subject to self-regulation.

The DNCR Act provides some exemptions for certain types
of telemarketing calls authorised by government bodies.
However, the exemptions do not apply with respect to all
types of telemarketing calls, and the Standard imposes
restrictions which apply to all telemarketing and research
calls, including those covered by exemptions under the
DNCR Act.

Checklist for clients

  • Ensure your policies and practices do not endorse
    unlawful activities.
  • Ensure any contracts for telemarketing or research
    services contain clauses which require compliance
    with the DNCR Act and Pt 6 of the TelComms Act
    where applicable.
  • Keep staff informed through:
    • carefully drafted policies
    • training sessions.
  • Consider policy issues before relying on the
    exemptions in the DNCR Act.

Nick Wood provides advice on complex
constitutional, statutory interpretation and administrative
law matters. In particular, Nick has expertise in media
and communications law, with experience in advising on
the operation of the Broadcasting Services Act 1992,
the Radiocommunications Act 1992 and the Telecommunications
Act 1997, as well as the DNCR Acts.

Peter Lahy specialises in providing advice
on complex constitutional and statutory interpretation
matters – with a particular focus on Commonwealth
financial, financial administration and machinery of
government matters.

Notes

  1. This includes a landline or mobile telephone number.
  2. As at 12 March 2007, no such purposes have been specified
    in the regulations.
  3. Schedule 1 to the DNCR Act provides an extended definition
    of the expression 'designated telemarketing call'.
  4. There are different prohibited calling times for research
    calls compared to other calls to which the Standard applies:
    see ss 5(1), (2) and (3).
  5. There are different requirements for research calls,
    compared to other calls to which the Standard applies,
    concerning when certain information required to be given
    must be given: see ss 6(4) and (5).
  6. For example, a call relating to goods and services,
    the making of which is authorised by a government body,
    where that body is the supplier or prospective supplier.

AGS contacts

AGS has a network of lawyers experienced in providing
advice to agencies on media and communications law. For
further information on the articles in this issue or on
other media and communications issues, please contact Robert
Orr QC, National Practice Leader Government, Andrew Schatz,
leader of AGS's media and communications network,
the authors, or any other of the lawyers listed below.

Canberra

Robert Orr

02 6253 7129

Sydney

Sonja Marsic

02 9581 7594

Melbourne

Jeff Cranston

03 9242 1367

Brisbane

Katrina Close

07 3360 5784

Perth

Scott Slater

08 9268 1144

Adelaide/Darwin

Andrew Schatz

08 8205 4201

Hobart

Peter Bowen

03 6210 2104

ISSN 1448-4803 (Print)
ISSN 2204-6283 (Online)

The material in this briefing is provided to AGS clients
for general information only and should not be relied
upon for the purpose of a particular matter. Please contact
AGS before any action or decision is taken on the basis
of any of the material in this briefing.© AGS All
rights reserved