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Wednesday, 21 June 2006
Page: 44

Senator COONAN (Minister for Communications, Information Technology and the Arts) (12:26 PM) —I thank all senators for their contributions to the debate on what, I think we all agree, are very important bills—that is, the Do Not Call Register Bill 2006 and the Do Not Call Register (Consequential Amendments) Bill 2006. I am pleased to note that there is broad support for the legislation in this chamber.

Telemarketing is generally considered to be the most intrusive form of direct marketing and there is considerable public demand for a Do Not Call Register. Today, the government moves to take action against nuisance calls. We will give peace of mind to those who dislike and, indeed, resent the intrusion and disruption caused by unsolicited telemarketing calls. The Do Not Call Register Bill and consequential amendments bill provide a direct response to growing community concerns about unsolicited and unwanted telemarketing calls. Before announcing the creation of a register, the government has consulted widely through the discussion paper process to ensure that there is an appropriate balance between the right of an individual to privacy and the need for businesses to promote their products and services. As with most things we deal with in this chamber, it is that elusive balance that is difficult to achieve.

The telemarketing industry has also called for action, as there are a multitude of differing rules that govern telemarketing practices, including voluntary codes, state and territory legislation and Commonwealth law. None of these regulate the industry in its entirety, and the most annoying callers have been operating with impunity. There is a need to provide telemarketers with more operational certainty and individuals with certainty that they can stop annoying calls. The government is addressing these concerns by giving Australian phone users the right to opt out of receiving unsolicited telemarketing calls and by creating a more consistent and efficient operating environment for the telemarketing industry. The telemarketing industry will also benefit through the introduction of nationally consistent standards covering issues such as permitted calling hours. The register will mean that telemarketers can better target their calls by removing from their contact lists details of individuals who do not want to receive calls.

Under the arrangements set out in the bills, a national Do Not Call Register and telemarketing conduct standards will be established. People who do not wish to receive telemarketing calls would have the option of applying for their fixed and mobile numbers to be recorded on the register. There will be no charge to individuals to put their number on the register. Once a number is recorded, it will be prohibited for telemarketers to contact the number except in specified circumstances. The Australian Communications and Media Authority, ACMA, will be the responsible regulator for the implementation of the register. It will operate the register itself, or it may arrange for a third party to do that.

The scheme will be backed by a range of enforcement options including warnings, fines, formal directions and financial penalties. The scheme will apply to telemarketing calls made within Australia and to calls originating from overseas. The scheme also includes regulation making powers which provide flexibility to respond to any unexpected consequences. For example, if the exemption or consent arrangements are abused or operational difficulties arise, these can be addressed through regulations. Some exemptions are provided for organisations that act in the public interest, such as charities, religious organisations, education institutions and government. Those exemptions have been built into the legislation to ensure that organisations acting in the public interest can continue to contact people. Exempted callers must comply with the national standards established by ACMA. Those standards will include permitted calling hours, information that callers must provide about their organisations and termination of calls.

I note that there has been some discussion in the chamber about political parties and the proposal to exempt them. I note that Family First and the Democrats have concerns with the exemption for political parties, Independent members of parliament and candidates. The government’s decision to exempt political parties from the register is consistent with the other exemptions in the bill, which seek to balance the ability of organisations to undertake socially important work. Political parties, Independent MPs and nominated candidates play a vital role in a democratic society, and it is important that they be able to continue to make a range of calls, including calls seeking donations, to enable them to continue in this role.

The Labor Party has also raised concerns that small businesses are not able to put their numbers on the register. Although I was not in the chamber, I understand that Labor suggested that small businesses should be able to opt out of mass marketing calls from Indian based call centres while continuing to receive business-to-business calls. If I have Labor’s position correct, that is clearly an impossible suggestion from a practical point of view, as both types of calls are still telemarketing calls. After further consultation with the telemarketing industry, practical issues arose that made it problematic to include small businesses on the register. It is not possible for a telemarketer to easily determine the size of the business they wish to call. This would mean that any telemarketer undertaking business-to-business telemarketing would be required to wash their lists against the register.

In addition, businesses change size over time, which makes it difficult to determine whether a particular business is eligible to register and could result in businesses with over 20 people being listed on the register as the business grows over time. Many small businesses advertise their telephone numbers for the purpose of gaining additional business. Businesses contact each other for a multitude of reasons in the ordinary course of day-to-day operations, and the government was concerned not to potentially expose organisations to fines and penalties for what could only be regarded as ordinary business-to-business contact. For those reasons, and in order to keep the scheme focused on the rights of individuals to privacy, small businesses will not be able to place their numbers on the register.

The government has allowed calls to be made where there is express or inferred consent. I want to say a few things about that. Inferred consent is likely to exist where there is a pre-existing business relationship. This will allow businesses to contact individuals for the purpose of offering or selling new products—even if they are registered on the Do Not Call Register—where they have a pre-existing relationship, such as a bank account or a contract phone service, unless the individual has expressed a desire not to be called. For example, if a person has provided their telephone number to their bank, with whom they have a mortgage transaction account and credit card, it would be reasonable for the person to expect to receive marketing calls about the bank’s available mortgage products or credit card arrangements, subject to any contrary intention expressed by the individual. However, if the bank, for example, happened to own a car dealership and called about the purchase of a car, this call would not fall within the notion of inferred consent.

With either express or inferred consent, the business will need to satisfy itself that the consent was validly provided by the relevant telephone account holder or their nominee. That reflects the reality that the account holder should be able to control the calls on their telephone. If a consumer does not wish to receive telemarketing calls from an organisation with which they have an existing business relationship, they can withdraw their consent at any time. I note that a number of submissions to the committee raised concerns about the definition of an organisation under the consent provisions for a pre-existing business relationship. Many of the submissions considered that the definition of an organisation should include bodies corporate or related entities. It appears that there has been a great deal of misunderstanding on this issue, which I would like to now clarify.

For organisations that might choose to structure themselves, for operational reasons, into various entities, the consent provisions do not restrict a telemarketing call in situations in which it could reasonably be inferred that an individual had consented to solicitations from a related company. For example, if a telecommunications company has three operational subsidiaries—networks, mobile and internet—it may be reasonable to infer that an individual with a pre-existing business relationship has consented to receive calls from the various related subsidiaries or networks, subject to any contrary intention expressed.

I note that Senator Fielding raised an issue about the logical rationale for three-year renewal requirements. I want to place on record a response to that. Numbers will remain on the register for a period of three years before they will have to be re-registered. With approximately 17 per cent of the Australian population moving house each year, three years is considered to strike an appropriate balance between the need for accuracy of registration and the need not to require registrants to re-register each year. A number can be withdrawn prior to that time. The process for removing numbers from the register is to be determined by ACMA once the legislation commences.

Just to conclude my summing up remarks, I note that some contributors to this discussion have been critical of the time it has taken to bring forward this legislation. But I do want to put on record that developing what I think is a good public policy approach takes time and careful development. I certainly make no apology for ensuring that a robust and effective register is implemented. The government’s strategy in developing legislation has always been to ensure that we have listened to the views of industry and the community and to design something that appropriately meets the interests of all stakeholders in this matter. In the process, I believe we have managed to develop a package that is an effective response to an identified problem. Those who were worried about any delay can now support this bill in its entirety. I thank all those who have contributed to the debate.

Question put:

That the amendment (Senator Stott Despoja’s) be agreed to.