EXPLANATORY STATEMENT
Issued by the authority of the Australian Communications and Media Authority
Do Not Call Register (Access Fees) Amendment Determination (No.1)
Do Not Call Register Act 2006
Purpose
The Australian Communications and Media Authority (ACMA) has made the Do Not Call Register (Access Fees) Amendment Determination (No.1) (the Amendment Determination) to amend the Do Not Call Register (Access Fees) Determination 2007 (the Determination). The purpose of the Amendment Determination is to implement changes in payment arrangements for fees for the “washing services” provided under subsection 19(2) of the Do Not Call Register Act 2006 (the Act).
Legislative Provisions and Background
Under subsection 13(1) of the Act, the ACMA must keep or arrange for another person (the contracted service provider) to keep, on behalf of the ACMA, a register of Australian numbers for the purposes of the Act. The register is known as the Do Not Call Register (Register).
Under the Act individuals can “opt out” of receiving certain unsolicited telemarketing calls or marketing faxes by registering eligible numbers on the Register.
It may be unlawful under section 11 of the Act to make, or to cause to be made, telemarketing calls to Australian numbers placed on the Register. It may also be unlawful under section 12B of the Act to send, or cause to be sent, marketing faxes to an Australian number placed on the Register.
The Act also allows access-seekers to submit lists of Australian numbers to the ACMA or the contracted service provider for checking against the Register (section 19 of the Act). The ACMA or the contracted service provider must then inform the access-seeker which numbers (if any) on the access-seeker’s list are (or are not) listed on the Register. This process of “washing” a submitted list against the Register enables access-seekers to comply with the Act (see subsections 11(3) and 12B(3) of the Act).
Under subsection 21(1) of the Act, the ACMA may make a determination about the fees payable for services provided to access-seekers, such as the provision of a “washed list”, or the refunds of fees for those services. The determination may also make provision for any exemption from fees payable (subsection 21(2) of the Act). The charges must not be such as to amount to taxation.
A determination made under subsection 21(1) is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (LIA).
On 1 May 2007, the ACMA made the Determination.
Under the Determination, an access-seeker must register to purchase a subscription with the ACMA, or its contracted service provider, in order to submit lists of Australian numbers for checking or “washing” against the Register. The Determination has previously allowed the applicable subscription fees to be paid on 30 day invoice terms, while allowing the subscriber to begin washing numbers immediately.
The ACMA incurs a range of costs in providing the washing service. These costs are a recoverable expenditure. The ACMA recovers the expenditure involved in providing the washing service from access-seekers by including these costs in the subscription fees. The ACMA has reviewed these arrangements and considers that the credit approval and debt recovery functions which are presently employed could be rendered more effective and efficient.
The key change effected by the Amendment Determination is that access-seekers will be required to pre-purchase their subscriptions before the subscriber is allowed to wash numbers. Changes have also been made to remove the inclusion of bank fees incurred by the ACMA or the Commonwealth for processing payments made or originating outside Australia.
Regulation Impact
Given the expected minimal impact the introduction of pre-payment arrangements will have on industry and competition, an exemption from a Regulatory Impact Statement and Business Cost Calculator Report has been obtained.
Consultation
Section 17 of the LIA sets out the relevant consultation requirements that the ACMA is to undertake before making a legislative instrument. The Amendment Determination is a legislative instrument and a Discussion Paper about the proposed Register pre-payment arrangements was issued for public comment in June 2010. The Discussion Paper sought public feedback on the introduction of pre-payment arrangements.
The Discussion Paper was published on the ACMA’s website and emailed directly to key industry stakeholders, including over 7,000 telemarketers, fax marketers, associations representing firms engaged in telemarketing and fax marketing, and consumer groups.
The ACMA received six submissions in response to the Discussion Paper. The majority of the submissions supported the change to pre-payment arrangements.
NOTES ON INSTRUMENT
Section 1 - Name of Determination
The Amendment Determination is called the Do Not Call Register (Access Fees) Amendment Determination (No.1).
Section 2 - Commencement
The Amendment Determination commences on 8 April 2013.
Section 3 – Amendment of Do Not Call Register (Access Fees) Determination 2007
Section 3 provides that Schedule 1 amends the Determination.
Section 4 - Transitional
Section 4 ensures that the amendments to the Determination do not apply to subscriptions that were purchased prior to the commencement of the Amendment Determination, or to invoices that were issued in accordance with the Determination prior to the commencement of the Amendment Determination. Subscriptions purchased, and invoices sent, prior to the commencement of the Amendment Determination will be subject to the provisions of the Determination that were in force at the time the subscription was purchased or the invoice was sent.
Schedule 1 – Amendments
Item [1] inserts a definition of “access-seeker’s registration”, which is taken from subsection 4(3) of the Do Not Call Register (Access to Register) Determination 2007, and inserts a definition for the “ACMA”.
Item [2] inserts a definition of “current subscription”. It also inserts a definition of “subscription fee”, which replaces the concept of “annual subscription fee” previously used in the Determination.
Item [3] substitutes a new subsection 4(1) of the Determination to remove the inclusion of bank fees that may be incurred by the ACMA or the Commonwealth in processing payments made or originating outside of Australia. This change is to reflect that the ACMA no longer considers it necessary for the fees for washing services to include this component.
Item [4] substitutes the table in section 4 so that the heading in column 3 is altered from “Annual subscription fee” to “Subscription fee”.
Item [5] inserts new subsections 4(3) and 4(4).
Subsection 4(3) provides that a separate subscription fee is payable for each type of subscription (except a subscription type A) and gives examples of how multiple subscriptions are calculated.
Subsection 4(4) ensures that the ACMA or contracted service provider does not wash a list of Australian numbers submitted by an access-seeker unless the access-seeker holds a current subscription, which has unused numbers equal to or greater than the number of Australian numbers on the access-seeker’s list to be checked.
Item [6] omits the word “annual” for consistency with the new definition of “subscription fee” in section 3 (see Item [2] above).
Item [7] substitutes sections 6 and 8 of the Determination with new sections 6, 7 and 8.
Subsection 6(1) provides that a subscription period for a type A subscription commences on the day the order for a type A subscription is received.
Subsection 6(2) provides that the subscription period for subscriptions other than type A commences on the day the subscription fee is received. The effect of this provision is that the access-seeker will not have a current subscription, and consequently will not be able to begin washing numbers against the Register, until the subscription fee is received by the ACMA or the contracted service provider.
Subsection 6(3) states that the subscription period ends 12 months after the day it commences unless it is cancelled.
Subsection 6(4) gives the ACMA the discretion to allow a subscription to commence at the time that the access-seeker agrees to pay for the subscription. For example, this subsection allows the ACMA to allow for subscriptions to be post-paid where it is not possible or practical for a subscription to commence in accordance with subsection 6(2).
Subsection 7(1) allows an access-seeker to place an order for subscriptions by using a method specified by the ACMA.
Subsection 7(2) enables the ACMA to cancel an order for a subscription that has not been paid within 14 days.
Subsection 7(3) enables the ACMA to specify the methods of payment by which a subscription must be paid.
Subsection 8(1) enables the ACMA to suspend the registration of an access-seeker if a payment for a subscription is dishonoured.
Subsection 8(2) enables the ACMA to re-activate the access-seeker’s registration on full payment of fees for the subscription.
Subsection 8(3) provides that the subscription period of the subscription will not be affected by the suspension. That is, the subscription period continues to run during the suspension and is not extended to take account of the period of suspension.
Subsection 8(4) enables the ACMA to suspend an access-seeker’s registration without notice in exceptional circumstances.
Item [8] inserts “The” before “ACMA” in section 9 for consistency with the Act.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Do Not Call Register (Access Fees) Amendment Determination (No.1)
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
This Legislative Instrument amends the Do Not Call Register (Access Fees) Determination 2007. The overall effect of the Legislative Instrument is that the fees for services provided to access-seekers under subsection 19 (1) of the Do Not Call Register Act 2006 are payable upfront for a subscription period of 12 months.
Human rights implications
This Legislative Instrument does not engage any of the applicable rights or freedoms.
Conclusion
This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.