Telecommunications (Do Not Call Register) (Telemarketing and Research Calls) Industry Standard Variation 2010 (No. 1)

Explanatory Statement

Issued by the authority of the Australian Communications and Media Authority

TELECOMMUNICATIONS (DO NOT CALL REGISTER) (TELEMARKETING AND RESEARCH CALLS) INDUSTRY STANDARD VARIATION 2010 (No. 1)

Telecommunications Act 1997

Background, purpose and legislative basis

This document provides an explanation of the Telecommunications (Do Not Call Register) (Telemarketing and Research Calls) Industry Standard Variation 2010 (No. 1) (the Telemarketing Standard Variation) made under section 130 of the Telecommunications Act 1997 (the Tel Act).

The Tel Act requires the ACMA to determine an industry standard to apply to the telemarketing industry.  This is in addition to the obligations placed on telemarketers by the Do Not Call Register Act 2006 (DNCR Act). 

On 22 March 2007, the ACMA made the Telecommunications (Do Not Call Register) (Telemarketing and Research Calls) Industry Standard 2007 (the Telemarketing Standard).  A small variation was made to the Telemarketing Standard on 29 May 2007.  The Telemarketing Standard, among other things, sets out the times at which telemarketing calls and research calls can be made, the information that must be provided when making such a call, and the circumstances in which a telemarketing call must be terminated.

The Do Not Call Register Legislation Amendment Act 2010 (the Amending Act) was made on 18 May 2010. The operative provisions of the Amending Act came into effect on 30 May 2010. The Amending Act amended the DNCR Act to, among other things, extend the numbers eligible for registration on the Do Not Call Register to include emergency service numbers, numbers used or maintained exclusively for use by a government body and numbers used or maintained exclusively for transmitting and/or receiving faxes.

The Amending Act also made changes to certain definitions in the DNCR Act which are incorporated into or referred to in the Telemarketing Standard.  The Telemarketing Standard Variation makes consequential amendments to the Telemarketing Standard to ensure that it refers to correct definitions, as now contained in the DNCR Act.

Consultation

The variations made by the Telemarketing Standard Variation are consequential amendments necessary to be made to ensure that terminology used in the Telemarketing Standard is consistent with the DNCR Act as amended. They do not alter the existing arrangements beyond ensuring that the terminology is consistent with the amended DNCR Act.   Under subsection 132(3) of the Tel Act, public consultation is not required for minor variations such as these.

Nevertheless, it is noted that prior to the Amending Act being made, the Department of Broadband, Communications and the Digital Economy (the Department) engaged in extensive consultation with the public and with industry in relation to the proposed changes. The Bill was also subject to review by the Senate Environment, Communications and Arts Legislation Committee.  Accordingly, public consultation has already been undertaken on the effect of these variations.

Apart from public consultation, the Tel Act also requires the ACMA to consult with the following parties before making a variation to the Telemarketing Standard, regardless of how minor the proposed variation is:

• the Australian Competition and Consumer Commission (ACCC)[1];
• the Privacy Commissioner[2];
• a body or association that represents the interests of consumers (in this case, Choice was consulted)[3]; and
• the States, the Australian Capital Territory, and the Northern Territory[4].

All comments received by the ACMA from these parties were to the effect that there was no objection to the proposed variation.

Regulatory impact

On 8 September 2010 the Office of Best Practice Regulation agreed with the preliminary assessment that no Regulation Impact Statement would be required in relation to these changes and provided advice of this effect (ID 11758). Accordingly no Regulation Impact Statement is required for the Amending Determination.

Notes on the instrument

Section 1 – Name of Variation

Section 1 provides that the Telemarketing Standard Variation is the Telecommunications (Do Not Call Register) (Telemarketing and Research Calls) Industry Standard Variation 2010 (No. 1).

Section 2 – Commencement

Section 2 sets out that the Telemarketing Standard Variation commences on the day after it is registered.

Section 3 – Amendment of Telecommunications (Do Not Call Register) (Telemarketing and Research Calls) Industry Standard 2007

Section 3 provides that Schedule 1 amends the Telemarketing Standard.

Schedule 1 - Amendments

[1] Section 3

Item 1 inserts a definition of “Australian number”, which is given the same meaning as in the amended DNCR Act.  This ensures that the Telemarketing Standard uses terminology that is consistent with the DNCR Act.

[2] Section 3

Item 2 omits the word “telephone” from the phrase “relevant telephone account-holder” in the definition of “call recipient”, as the defined term “relevant telephone account-holder” has been replaced in the DNCR Act with the defined term “relevant account-holder”. 

[3] Section 3

Item 3 omits the definition of “relevant telephone account-holder”, and replaces it with a definition of “relevant account-holder”, which refers to the definition provided in section 4 of the DNCR Act.  The defined term “relevant telephone account-holder” has been replaced in the DNCR Act with the defined term “relevant account-holder”.

[4] Subsection 5(4)

Item 4 omits the word “telephone” from the phrase “relevant telephone account-holder”, for the reason provided at item 3.

[5] Note to subsection 5(4)

Item 5 amends a Note in the Telemarketing Standard, to omit the word “telephone” from the phrase “relevant telephone account-holder”, for the reason provided at item 3.

[6] Paragraph 5(5)(a)

Item 6 omits the word “telephone” from the phrase “relevant telephone account-holder” (wherever occurring), for the reason provided at Item 3.

[7] Subparagraph 6(1)(j)(i)

Item 7 makes a consequential amendment to paragraph 6(1)(j)(i) by replacing the word “telephone” with “Australian”.

[8] Subsection 6(2)

Item 8 omits the subsection, and replaces it with a new subsection 6(2) which adopts the terminology used in the amended DNCR Act.  The phrase “a telephone number” becomes “an Australian number”, and phrase “telephone call” is replaced with “voice call”.

[9] Subsection 6(3)

Item 9 omits the subsection, and replaces it with a new subsection 6(3) which adopts the terminology used in the amended DNCR Act.  The phrase “a telephone number” becomes “an Australian number”, and the phrase “telephone number” is replaced with “number”.

[10] Paragraph 7(1)(a)

Item 10 omits the word “telephone” from the phrase “relevant telephone account-holder” (wherever occurring), for the reason provided at Item 3.

[11] Example after paragraph 7(1)(b)

Item 11 omits the word “telephone” from the phrase “relevant telephone account-holder” (wherever occurring), for the reason provided at Item 3.

[1] Subsection 133(1) of the Tel Act.

[2] Section 134 of the Tel Act.

[3] Subsection 135(1) of the Tel Act.

[4] Section 135A of the Tel Act.