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Client Update: Review of the Do Not Call Register

27 October 2009

In brief: The Federal Government has released a discussion paper calling for submissions ahead of its review of the Do Not Call Register Act 2006 (Cth). Partner Michael Pattison and Lawyer Nicholas Tobias report.

Background

The Do Not Call Register (the Register) was established in May 2007 under the Do Not Call Register Act 2006 (Cth) (the Act) in response to increasing consumer complaints about unsolicited and unwanted telemarketing calls. The Act allows Australian phone users to opt out of receiving unsolicited telemarketing calls, by listing their private fixed or mobile telephone numbers on the Register. For further information on the Act and the Register, please see our earlier report on the scheme and its implications.

The Federal Government is currently conducting a review of the Act. Ahead of its review, the Government has released a Discussion Paper calling for submissions on a number of issues, which are set out below.

The closing date for submissions is 4 November 2009.

Scope

The Government's decision to extend the Register to include all business numbers is excluded from the Discussion Paper's scope and, instead, will be the subject of separate consultation. The exclusion of this issue from the Discussion Paper is likely due to the considerable debate that it has created and the need for it to be explored in greater depth.

Review of the arrangements by which the telemarketing industry meets the full direct costs of operating the Register is also excluded from the Discussion Paper's scope, having taken place in March 2008.

Opt-out registration

Currently, individuals must list their numbers on the Register in order to stop receiving telemarketing calls for three years. According to a research report on community attitudes to unsolicited communications published by the Australian Communications and Media Authority (ACMA) on 13 October 2009, roughly 32 per cent of Australian adults have a telephone number on the register.

The Discussion Paper calls for submissions on whether the opt-out structure of the scheme can be improved; for example, by changing its structure to an 'opt-in' scheme. The Discussion Paper also calls for submissions on how the registration process may be improved, and whether numbers should remain on the list for a period greater than three years before registration is due for renewal.

Consent

The Act permits telemarketing to individuals who have given express or inferred consent to receive telemarketing calls, regardless of whether or not they are listed on the Register.

The Discussion Paper calls for submissions on whether the provisions relating to 'express consent' and 'inferred consent' are appropriate. Improvements the Discussion Paper suggests may include, for example:

  • defining the term 'express consent';
  • limiting the timeframe for which an express consent may be valid;
  • providing that inferred consent may be given only by existing customers or only within a particular period after a relationship ceases; and/or
  • providing that consent may be withdrawn at any time.

Exemptions

The Act does not prohibit telemarketing from government bodies, religious organisations, charitable institutions, political parties, candidates for election and educational institutions in certain circumstances. The Discussion Paper requests submissions on whether these exemptions are appropriate.

Further, telemarketing is not prohibited by the Act if the call is for a research purpose rather than product marketing. The Discussion Paper does not call into question the scope of the Act in this respect, but notes that it might be appropriate to define the nature of a 'research call'.

Washing

Under the Act, telemarketers may submit to ACMA a list of telephone numbers, following which ACMA is to return a list of those numbers that are (or are not) on the Register, and the telemarketer may rely on the 'washed' list for a period of 30 days. The Discussion Paper calls for submissions on whether the process of washing is effective and easy to use, and how it may be improved.

Compliance, education and awareness

The Act sets out various penalties for non-compliance. For example, ACMA may impose a fine of $2,200 on a corporation (or $440 on an individual) for calling a single number on the Register, and $110,000 on a corporation (or $22,000 on an individual) for 50 or more breaches. If, instead, ACMA initiates proceedings in the Federal Court or the Federal Magistrates Court, the court may order pecuniary penalties of up to $1.1 million for a corporation ($220,000 for an individual) with a prior record of making multiple unsolicited telemarketing calls on one day. The Discussion Paper calls for submissions on ACMA's complaint handling process and on whether the penalties in the Act are appropriate.

The Discussion Paper also seeks comments on the education and awareness activities undertaken by ACMA, and whether the information on the Register is easy to find and understand.

Industry codes and standards

The Discussion Paper acknowledges that ACMA is undertaking a review of the Telecommunications (Do Not Call Register) (Telemarketing and Research Calls) Industry Standard 2007 (the Industry Standard), which deals with certain aspects of telemarketing within the telemarketing industry. The Discussion Paper notes that the Industry Standard does not apply to organisations outside the telemarketing industry that cause telemarketing calls to be made, and questions whether industry codes and standards should apply to such organisations.

The Discussion Paper also calls for submissions on whether the process for setting industry codes and standards is sufficiently responsive and flexible, and on whether the Industry Standard should be expanded in any of the following ways:

  • requiring telemarketers to maintain detailed records of their calls;
  • requiring telemarketers to maintain a list of all individuals who have expressed a wish not to receive further calls (including those who have not listed their telephone numbers on the Register) and refrain from calling those individuals; and/or
  • regulating telemarketers' use of 'missed calls' and 'silent calls' that rely on individuals returning those calls to receive an automated message, at their cost.

The Discussion Paper concludes by allowing submissions dealing with any other comments or concerns about the Register.

Looking forward

The diverse range of issues raised in the Discussion Paper will be of considerable interest to telemarketers, organisations that deal with telemarketers, organisations that are currently exempt from the Act, and privacy advocates. All interest groups may wish to tender submissions to the Government on the above issues. Telemarketers may be especially concerned at the prospect of limiting the operation of express and inferred consent, and the suggested expansions to the Industry Standard. Those who deal with telemarketers should be alert to the suggestion that those organisations be subject to compliance with telemarketing industry codes and standards.

For further information, please contact:

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