Australian Regulatory Compliance Review

Do Not Call Register Legislation Amendment Bill introduced

The Do Not Call Register Legislation Amendment Bill 2009 has been introduced into Parliament.

If the Bill is passed, the Do Not Call Register will be expanded to enable all Australian telephone and fax numbers to be registered by all persons, including individuals, businesses, government and organisations.

The main elements contained in the Bill are:

• a provision that makes all Australian telephone and fax numbers eligible to register on the Do Not Call Register;
• a prohibition on sending unsolicited marketing faxes to an Australian number which is registered on the Do Not Call Register, subject to certain exemptions;
• a requirement that agreements for the sending of unsolicited marketing faxes must require compliance with the Act. This requirement is aimed at organisations which may contract with another party to provide fax marketing services on their behalf;
• civil penalty provisions for breaches of the new provisions;
• the introduction of ‘registered consent’ which will give all new registrants the option of consenting to receive telemarketing calls or marketing faxes relating to particular industry classifications at the time of listing their number on the Register. The default position will continue to be that registrants are opting out of all telemarketing calls and marketing faxes, unless they take positive action to opt-in to receive certain types of telemarketing calls and marketing faxes. Registrants will be able to change their options at any time if they later choose to opt-out of these calls/faxes;
• conferring powers on the Australian Communications and Media Authority (ACMA) to make a determination setting out the industry classifications for the purposes of enabling registrants to choose the telemarketing calls and marketing faxes they wish to receive (if any);
• conferring powers on the ACMA to make a determination or determinations about the circumstances in which consent will be inferred for unsolicited telemarketing calls and marketing faxes to business numbers. This is a reserve power and there will be no change to the existing inferred consent provisions under the Act; and
• consequential amendment to Part 6 of the Telecommunications Act 1997, to allow the fax marketing industry to make industry codes, and the ACMA to make industry standards for the ‘fax marketing industry’, consistent with the existing arrangements which allow codes and standards to be made for the telemarketing industry. The ACMA will have the power to make an industry standard relating to the fax marketing industry.

It is anticipated that these arrangements will be in operation during the second half of 2010.

Do Not Call Register review discussion paper

The Government has released a Discussion Paper reviewing the Do Not Call Register Act which allows Australians to opt out of receiving unsolicited commercial marketing (telemarketing) calls by listing their fixed line and mobile telephone numbers used primarily for private or domestic purposes.

The Discussion Paper does not deal with the Government's announced intention to expand the Register to include business numbers.

It invites comments on the operation of the Register and key elements of the legislation and discussion of options including :

• the opt-out mechanism
• the definition of consent
• the length of the registration period
• exemptions
• research calls

The closing date for submissions is 4 November 2009.

Do Not Call Register Act 2006 Compliance Guide

ACMA has released the Do Not Call Register Act 2006 Compliance Guide to provide telemarketers with detailed guidance about measures they can take to comply with the Do Not Call Register legislation.

The guide encourages telemarketers to aim for best practice compliance with the legislation, and provides practical advice about how they can go about achieving it.

Proposed expansion of the Do Not Call Register

The Minister for Broadband, Communications and the Digital Economy, Senator Stephen Conroy has announced that the 2009-10 Budget provides for expansion of the Do Not Call Register to cover telephone numbers for businesses, fax users and emergency service providers,

It is expected that the introduction of the Bill to amend the Do Not Call Register Act 2006 will follow consultation with industry later this year.

Westpac warned over Do Not Call breaches

The Australian Communications and Media Authority has issued a formal warning to Westpac Banking Corporation (Westpac) after finding that its call centres had made prohibited telemarketing calls to numbers on the Do Not Call Register.

ACMA's formal investigation found that Westpac had breached the Do Not Call Register Act 2006 (the Act) by causing telemarketing calls to be made to people whose numbers were on the register. While they were existing customers of Westpac, they had asked not to be contacted about its products or services.

While Westpac had an existing relationship with the consumers concerned, ACMA’s investigation found that its procedures for recording the withdrawal of consent had failed, and subsequent telemarketing calls were made to these consumers despite the withdrawal of their consent.

Westpac has implemented a number of new procedures to address the issues identified in the investigation. These include checking all calling lists against the register, including telephone numbers of existing customers.

ACMA fines Dodo for Do Not Call breach

Telecommunications provider Dodo Australia Pty Ltd has been fined $147,400 after the Australian Communications and Media Authority alleged that an offshore call centre made telemarketing calls on its behalf to numbers on the Do Not Call Register.

ACMA has also accepted enforceable undertakings given by Dodo Australia under the Telecommunications Act 1997 that set out the steps it will take to comply with the Do Not Call Register legislation.

If a business decides to use offshore call centres to make calls, it will be responsible for the calls that those call centres make. There are some steps a business might take to protect itself:

• establish clear, enforceable contractual terms that require the call centre to comply with the Do Not Call Register legislation;
• set up effective procedures for checking numbers against the register;
• train all relevant staff – in Australia and overseas - about their obligations; and
• most importantly, regularly audit the call centre’s calling records to make sure they are not calling any numbers they shouldn’t be.

Possible expansion of Do Not Call Register

The Australian Communications and Media Authority (ACMA) has called for submissions on potential changes to the eligibility requirements for registration on the Do Not Call Register.

At present, telephone numbers not used primarily for private or domestic purposes and all numbers used exclusively to send or receive faxes, may not be listed on the Register. This effectively excludes businesses and other entities from being able to take advantage of the protections provided by the Register. There is some community demand to allow the registration of fax numbers and the telephone numbers used by organisations, such as small businesses.

A Departmental discussion paper was released on 15 August 2008 seeking community views on potential changes to what numbers should be eligible to be listed on the Register.

The closing date for submissions is 12 September 2008.

Do Not Call Register update

ACMA has published details of registrations on the Do Not Call Register since its launch in May 2007. As at 30 April 2008, 2.27 million people had registered as not wishing to be called.

ACMA is also inviting comment on the new fees telemarketers will have to pay to access the Do Not Call Register from 1 July 2008.

A discussion paper has been developed to solicit comment from the telemarketing industry on two access fee pricing options for the Register.

ACMA launches first Do Not Call Register investigation

The Australian Communications and Media Authority (ACMA) has instigated its first formal investigation under the Do Not Call Register Act 2006, which established the Do Not Call Register for Australian consumers. ACMA will investigate Lifestyle Dynamics following numerous complaints from people listed on the Register about continuing to receive calls from the company.

Lifestyle Dynamics is the subject of a large number of consumer complaints (over 90) despite repeated written warnings to the company from ACMA.

Telemarketing Standards varied

On 29 May 2007, ACMA varied the Telecommunications (Do Not Call Register) (Telemarketing and Research Calls) Industry Standard 2007 effective from 31 May 2007 to allow research calls to be made on Sundays between 9.00 am and 5.00 pm.

Telemarketing calls are still prohibited on Sundays under the standard.

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