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Thursday, 27 November 2003
Page: 18299


Senator KEMP (Minister for the Arts and Sport) (8:59 PM) —I feel I must respond to the remarks made by Senator Lundy because I think it draws on the wider issue that we have with the Spam Bill 2003. Senator Lundy spoke to an Internet industry roundtable early this year and I understand that Senator Lundy said that the primary challenge is to get workable legislation—and we agree with that.


Senator Lundy —We want it to be workable.


Senator KEMP —It was a lot of work to get workable legislation. I think the government worked hard and we did that in spades. It went to the Senate committee and the report recommended that it really should have been passed in its original form without amendment. We have had a series of amendments. I regret to say that they have added to the complexity of the bill. They have made it very difficult for the bill to be workable in a number of significant areas. There are some issues—no-one pretends that a bill is perfect—which certainly would be worthy of further exploration, but there are none that need to be immediately resolved. We will be opposing, again, these amendments that Senator Lundy has moved. Again, we do not think that they are well merited. Again, they will add to the complexity of the bill.

When the Senate committee considered the Spam Bill it was suggested by some witnesses, and in the Labor minority report, that there should be an additional element to the conspicuous publication provision—that the publication should be fresh or of recent occurrence. The figure of six months proposed by Labor's amendments, frankly, seems very arbitrary and runs the risk of imposing an unreasonable and unsupportable administrative burden on Australian business. There needs to be significant consultation to ensure that the addition of such a provision has no adverse consequences. In addition, the amendment as proposed by Labor does not appear to ensure that the publication of the address is of recent occurrence. It simply ensures that the sender obtained the address recently. It would still enable an electronic address, which had been posted on a web site several years previously, to be used, or one from an old copy of a phonebook—a very unsatisfactory position, I would have thought.

The government considers that the suggestion of a freshness provision is certainly an issue that could be considered as part of a planned review of the legislation. However, an amendment to the act would not be appropriate at this stage. Let me assure you that we would be happy to work with other parties to develop a consultation program and a form of words which more effectively meets the proposed intent for consideration at the two-year review, or indeed earlier if required. I think that is the best way forward and I hope that Senator Lundy, when she reflects on what has happened to this bill in this chamber, will pay heed to the words that I have said. I think that Senator Lundy would agree that I have a reputation for being a consultative minister as part of a consultative government. We are not opposed to listening and working with people. Indeed, I think part of our success has been that we have been able to do precisely that. Senator Lundy, my point is that, frankly, the amendment introduces another arbitrary element into this bill.

Let me turn to Labor amendment (5). Labor's proposed amendment is intended to enable relevant electronic account holders to permanently unsubscribe from future designated commercial electronic messages from a particular sender. However, the government noted in discussing Labor's sixth amendment that it is concerned that this could have undesirable consequences. For example, there may be certain types of messages which a person should not be able to unsubscribe from.



Senator KEMP —I know this is difficult and I think you have again headed down the wrong path in this matter. There are times in politics when you have just got to recognise that there are great complexities and people have to work together. You finally produce the legislation then the Labor Party, with the assistance of a few advisers who may be very clever and eminent in their own right, simply produce amendments—some, I have to say, for the sake of amendments—and respond to particular sectional interests. Trade unions are a classic one. You and I have had an argument on trade unions and I think—


Senator Lundy —And we might have another one.


Senator KEMP —I am always happy to have an argument about trade unions. The public just love to hear how the Labor Party jumps when the orders come from the trade unions. We are happy to have that argument but I do not propose to unless you really want that. Going back to what I was saying, there may be certain types of messages which a person should not be able to unsubscribe from—for example, product recall notices, where a person has a contractual obligation not to opt out. That seems to me to be an important objection to your amendment.

Further, the amendment introduces a legal discontinuity with related provisions of schedule 1, and in fact it departs from the intent of having an opt-out regime with narrow and closely defined exemptions. Labor's amendment would change the Spam Bill into legislation with two classes of messages, some operating as an opt-out and others under an opt-out regime. Again, complexity has been brought into the bill—done on the run. After a long period of work and review, it is suddenly done on the run. Someone has got to Senator Lundy's advisers and put these arguments forward.

As for the Democrats, who knows what the Democrats want—flip-flopping on every issue. Apparently they support this. Have they carefully considered the complexity issue? For heaven's sake, Senator Greig keeps on telling us he wanted a straightforward bill, a bill that could be understood, but with every amendment which adds complexity, Senator Greig is right up there at the front supporting it. It defies belief. It is a great pity. This is an area where the Democrats could have played a significant role and all they have done is just encourage Senator Lundy. Frankly, I count on my advisers but it seems to me that a lot of these amendments are making this bill quite unworkable. It is very unfortunate. It was a bill you supported. Senator Greig supports the bill, supports simplicity, supports no exemptions and then supports every amendment which is quite contrary to all that.

Let me make a couple of comments on amendment (4). The government does not support this amendment because as it stands it would require people to withdraw consent in situations where they never provided consent in the first place. Such an amendment may be appropriate for an opt-out regime, where consent is assumed until proven otherwise, but not in an opt-in regime as provided by this bill. It is no good shaking your head, Senator Lundy.


Senator Lundy —You are talking about the exemptions—


Senator KEMP —I am talking about your amendment.


Senator Lundy —You do not even understand the amendment.


Senator KEMP —You clearly do not understand the bill. You raised a whole host of amendments. Regrettably, you thought, `How can I take up the time of the Senate? How can I show my colleagues how effective I am as a shadow minister? I haven't done very well in sport or arts but my colleagues are not following this IT bill closely.' Frankly, Senator, I think you have mucked this up.


The TEMPORARY CHAIRMAN (Senator Lightfoot)—You should address your remarks to the chair, Minister.


Senator KEMP —Indeed I should. I stand chastened, Mr Temporary Chairman. It is not my habit, as you know, not to follow standing orders and it certainly will not happen again. Let me just summarise the government's position: we will be opposing the amendments that Senator Lundy has made. Senator Greig is going to support them. Okay, the bill will go down to the other place and we will have to deal with all this again at some stage. Then we can test whether Labor actually wants the bill or not. It is as simple as that; that is life.