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Monday, 1 December 2003
Page: 23373


Ms O'BYRNE (7:15 PM) —I am pleased to say that I believe the Spam Bill 2003 and the Spam (Consequential Amendments) Bill 2003 are returning to this place much improved, after the Senate saw the very good sense in providing Labor's refinements to this legislation. The amendments that the Senate made to these bills are workable and constructive and respond to several issues raised in the Senate inquiry into spam bills. Rather than go into the detail of these bills once more, I will simply outline to the House the nature of Labor's amendments and urge the House to support them and this improved bill.

In the Senate inquiry several submissions expressed concern about the search and seizure regime contained in the Spam (Consequential Amendments) Bill 2003. In particular, there was concern that in some circumstances individuals may have their computers searched without a warrant and without their knowledge or permission. This could occur thanks to the wording of this bill, which would allow Australian Communications Authority inspectors to ask the permission of the owner or occupier—for example, a landlord or flatmate—to search a premises as an alternative to getting a search warrant. This could occur even if the property owner or occupier is not the person whose property is to be searched.

Under the original legislation the dean or warden of a university college could have allowed ACA inspectors, which could include police officers, to search a student's residence and the student's belongings without the knowledge or permission of that student and without a warrant. The wording of the bill also could have held spam victims to be subject to ACA searches. The government argued that this might be unlikely to occur but the Senate has agreed with Labor's argument that, if such a power is not intended to be used, why include it? Labor's amendments improve the Spam (Consequential Amendments) Bill 2003 so that these and other concerns are addressed, and that is why a majority of the Senate supported them.

Labor's amendments also removed the inconsistency in schedule 1, clause 3 of the Spam Bill 2003 so that exemptions for charities, government bodies, political parties and religious organisations apply to political groups more fairly. It was unfair and inconsistent that, on the grounds of protecting political speech, some political groups were protected but not others. Labor agreed with the government's point listed in the explanatory memorandum, which says that the reason for exempting these organisations is to avoid any:

... unintended restriction on government to citizen, or government to business communication, nor any restriction on religious or political speech.

This is a sensible approach. Even if free religious and political expression were not inherently desirable, this exemption would be necessary to ensure that this legislation is consistent with the Constitution: both the expressed right to freedom of religion and the limited, implied right to freedom of political expression.

The groups listed all make vital contributions to religious and political discourse amongst their members and throughout the entire community. In this context these exemptions, if applied consistently across all not-for-profit political groups, are an appropriate way to protect free political and religious expression. However, the government chose to apply this reasoning in a very limited fashion. The free speech of some classes of political, religious and charitable organisations was protected and that of others not. To improve the clause, Labor sought to include trade unions and not-for-profit political lobby groups in schedule l, clause 3. These include groups like the Australian Republican Movement, Ausflag and Amnesty International, all of which play very important roles in our nation's political development.

This amendment also provides extra protection for charities. The Treasurer has already foreshadowed moves to exclude from the definition of `charity' those charitable organisations which also engage in political lobbying. Therefore it was possible that charities would only be exempted if they did not engage in political lobbying. Labor's amendment means that the bill now protects political expression across the board, not just for some groups.

During the Senate inquiry there was some concern raised that, because the Spam Bill 2003 makes no distinction between single and bulk commercial emails, it would prohibit some unsolicited commercial electronic messages sent by individuals or organisations with a genuine belief an intended recipient would want to receive it. Labor addressed this concern by introducing amendments to allow some leeway in these bona fide cases without opening up a loophole for spammers. Under the amendments the onus is clearly on the shoulders of the sender to prove that they had a bona fide belief that their email was specifically related to an interest known to be held by the recipient. This provision could not be used by a spammer indiscriminately firing off emails. In the Senate inquiry, the highly regarded information technology legal expert Philip Argy said:

When one has received four or five copies of an email ... about how to enhance the size of a part of one's anatomy, it is a bit hard, particularly when you have never met the person, to imagine how they are going to demonstrate a reasonably held belief that you would be interested in the content of such an email.

(Extension of time granted)This is an onerous enough test to separate well-meaning users of email from the type of person that this legislation is intended to target. In any case, under the amendments made by Labor, as I will go on to discuss, it is always possible for an Internet user to opt out from such specifically targeted emails if they do not wish to continue receiving them.

Another major concern raised during the Senate inquiry was that emails sent by exempted organisations—those described as `designated commercial electronic messages'—were not required to have a functional unsubscribe facility. Labor introduced an amendment to address this issue and, quite sensibly, the Senate has supported it. As a result, Australians can voluntarily opt out from receiving all commercial emails, and such emails must provide a simple mechanism for doing this. This is even in situations where the sending body would otherwise be exempt, such as government bodies or religious organisations. Labor saw no good reasons why Australians should be unable to object to receiving commercial emails from religious organisations, charities, political parties and such, and have altered the bill to ensure that this cannot occur. Obviously there is no intention that any of these provisions can be used by recipients to knock back emails which they are legally obliged to receive—for example, by contract or by legislation.

I have stated previously that Labor believes that some emails should be exempt from the Spam Bill. However, it was simply unacceptable that these emails could continue to be sent in the face of direct opposition from recipients. Labor's amendments have ensured that an unsubscribe facility is included in all emails and that, once received, an unsubscribe request is acted upon.

Labor's approach to these bills has been to look at some of the concerns raised about them by members of the Internet community and others. These include the Australian Consumers Association, Electronic Frontiers Australia, the Australian Privacy Foundation and the Internet Society of Australia, amongst many others. Then we developed constructive measures to address these concerns and therefore to improve the legislation. We were not alone. The Democrats, and indeed the whole Senate, supported these changes. As a result, appearing here before us from the Senate this evening is a vastly improved set of bills. These bills nonetheless still embody the original intent of the drafters. Unfortunately, the Howard government has indicated that it will reject the views of the Senate and those participants in the Senate inquiry. I find this very disappointing, and I hope that the Howard government and the minister will take these amendments in the spirit in which they were intended and support this much improved legislation.

Question agreed to.