Explanatory Statement
Issued by the authority of the Australian Communications and Media Authority
DO NOT CALL REGISTER (ACCESS TO REGISTER) AMENDMENT DETERMINATION 2010 (No. 2)
Do Not Call Register Act 2006
Background, purpose and legislative basis
This document provides an explanation of the Do Not Call Register (Access to Register) Amendment Determination 2010 (No. 2) (the Amendment Determination) made under subsection 20(1) of the Do Not Call Register Act 2006 (the Act).
The Act requires the ACMA to keep, or to arrange for another person (the contracted service provider) to keep, the Do Not Call Register (the Register). Subsection 20(1) of the Act allows the ACMA to make a determination providing for the manner in which lists of numbers can be submitted to the ACMA or the contracted service provider to be checked against the Register, and the manner in which the ACMA must provide the results of that check. This process of ‘washing’ access-seekers’ lists help access-seekers to avoid breaching the Act (see subsections 11(3) and 12B(3) of the Act).
On 27 April 2007, ACMA made the Do Not Call Register (Access to Register) Determination 2007 (the Determination). The Determination, among other things, sets out the manner in which access-seekers may submit a list of telephone numbers for washing and the manner in which the ACMA or the contracted service provider is to provide the information to the access-seeker.
The Amendment Determination makes a change of a minor nature to correct a drafting error made in an earlier legislative instrument which amended the Determination, the Do Not Call Register (Access to Register) Amendment Determination 2010 (No. 1).
Consultation
The amendments made by the Amendment Determination are changes of minor nature and do not substantially alter the existing arrangements under the Determination. Accordingly, the ACMA considers that consultation is unnecessary in the circumstances.
Regulatory impact
The amendment made by the Amendment Determination is minor and does not give rise to regulatory obligations. Therefore, a regulatory impact analysis process has not been applied.
Notes on the instrument
Section 1 – Name of Determination
Section 1 provides that the name of the instrument is the Do Not Call Register (Access to Register) Amendment Determination 2010 (No. 2).
Section 2 – Commencement
Section 2 sets out that the Amendment Determination commences on the day it is registered on the Federal Register of Legislative Instruments.
Section 3 – Amendment of Do Not Call Register (Access to Register) Determination 2007
Section 3 provides that Schedule 1 amends the Determination.
Schedule 1 - Amendment
[1] After subsection 4 (8)
Item 1 corrects the heading that appears after subsection 4 (8), effectively ensuring that the section is correctly numbered as section 5 of the Determination.
[2] After the heading to section 5
Item 2 corrects a drafting error, removing the extraneous word ‘Insert’ from section 5.
Overview
The Do Not Call Register (Access to Register) Amendment Determination 2010 (No. 2) was enacted to correct a minor drafting error in the Do Not Call Register (Access to Register) Amendment Determination 2010 (No. 1), which had previously amended the Do Not Call Register (Access to Register) Determination 2007. This amendment was introduced by the Australian Communications and Media Authority (ACMA) under subsection 20(1) of the Do Not Call Register Act 2006, with the purpose of ensuring the proper functioning of the Do Not Call Register. The policy objective is to facilitate compliance with the Act by access-seekers by providing them with an accurate and functional process to check their lists of telephone numbers against the Register, thereby preventing breaches of the Act. The Amendment Determination was not subject to consultation or a regulatory impact analysis due to its minor nature. The Amendment Determination corrects two specific errors: it adjusts the heading after subsection 4(8) to ensure the section is correctly numbered, and it removes an extraneous word from section 5.
Scope and Application
The Do Not Call Register (Access to Register) Amendment Determination 2010 (No. 2) amends the Do Not Call Register (Access to Register) Determination 2007, made under the Do Not Call Register Act 2006. This Act mandates the Australian Communications and Media Authority (ACMA) to maintain the Do Not Call Register, or arrange for another entity to do so, to help prevent breaches by access-seekers who wish to verify that their telemarketing lists comply with the Act. The Amendment Determination is a minor adjustment intended to correct a drafting error from a previous amendment, specifically addressing the formatting and numbering of sections within the Determination. It applies to the ACMA and any contracted service providers who manage the Register and to any entities or individuals seeking access to the Register for compliance purposes. The amendment does not extend the geographic or jurisdictional reach of the original Act, which applies nationally. There are no new exclusions, exemptions, or thresholds introduced by this Determination; it simply ensures the accuracy and clarity of the existing legal framework governing access to the Register.
Key Provisions
The Do Not Call Register (Access to Register) Amendment Determination 2010 (No. 2) amends the original 2007 Determination to correct minor drafting errors, ensuring clarity and consistency in the legislative instrument. Section 3 of the Amendment Determination specifies that Schedule 1 amends the 2007 Determination. Item 1 corrects the heading after subsection 4(8), ensuring it correctly references section 5. Item 2 removes the extraneous word 'Insert' from section 5, addressing a minor drafting error without altering the substantive requirements or processes outlined in the original Determination.
The Amendment Determination imposes obligations on the Australian Communications and Media Authority (ACMA) and the contracted service provider to maintain and manage the Do Not Call Register. Under the Do Not Call Register Act 2006 (section 20), the ACMA is responsible for ensuring that the Register is kept and for arranging for another person to keep it if necessary. The Amendment Determination outlines the process for 'washing' access-seekers’ lists against the Register, ensuring that access-seekers can comply with the Act by avoiding contacting individuals who have registered their numbers. This process is crucial for preventing breaches of the Act, which prohibits access-seekers from contacting individuals on the Register for direct marketing purposes (subsections 11(3) and 12B(3)).
There are no specific offences, penalties, or civil/criminal consequences outlined in the Amendment Determination itself. The primary focus of the Amendment Determination is to correct minor drafting errors in the 2007 Determination, ensuring the legislative instrument operates as intended without introducing new obligations or consequences for non-compliance. However, the underlying Do Not Call Register Act 2006 does provide for penalties for breaches. Under section 16 of the Act, an individual or entity found to have contravened the Act may be subject to penalties, including fines of up to $11,100 for individuals and $55,500 for bodies corporate. These penalties reflect the seriousness of non-compliance with the Do Not Call Register requirements, underscoring the importance of accurate and consistent legislative instruments in enforcing the Act.