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Do Not Knock Register Bill 2012

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2010-11-12

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

Do Not Knock Register Bill 2012

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

Circulated by authority of

Steve Georganas MP

 

 

 

 

 

Do Not Knock Register Bill 2012

 

OUTLINE

 

The Do Not Knock Register Bill 2012 (the Bill) sets up a scheme to enable individuals to opt out of receiving unsolicited marketing calls to residential and government addresses.

 

The proposed framework contained in the Bill is aimed at regulating and minimising unsolicited marketing calls made to Australian residential and government addresses.

 

 

  The Bill prohibits the making of unsolicited marketing calls to an address registered on the Do Not Knock Register. 

 

    

 

  The main remedies for breaches are infringement notices, civil penalties and injunctions.  

 

    

 

  Proceedings for civil penalties and injunctions may be instituted by the Registrar in the Federal Court or the Federal Magistrates Court. 

 

    

 

  The Bill permits ‘designated marketing calls’ from certain organisations and individuals including government bodies, charities, religious organisations, politicians and political candidates. 

 

FINANCIAL IMPACT

 

The Bill will have no financial impact.

 



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Do Not Knock Register Bill 2012

 

This bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Overview of the bill

 

The Do Not Knock Register Bill 2012 (the Bill) sets up a scheme to enable individuals to opt out of receiving unsolicited marketing calls to residential addresses. 

 

The proposed framework contained in the Bill is aimed at regulating and minimising unsolicited marketing calls made to Australian residential addresses.

 

 

  The Bill prohibits the making of unsolicited marketing calls to an address registered on the Do Not Knock Register.  

 

    

 

  The main remedies for breaches are infringement notices, civil penalties and injunctions.  

 

    

 

  Proceedings for civil penalties and injunctions may be instituted by the Registrar in the Federal Court or the Federal Magistrates Court. 

 

    

 

  The Bill permits ‘designated marketing calls’ from certain organisations and individuals including government bodies, charities, religious organisations and politicians and political candidates.  

 

    

 

  The Bill is based on the Do Not Call Register 2006.    

 

Human rights implications

 

This bill engages the following rights and freedoms:

 

·          Right to privacy

·          Rights of people with disability

·          Right to take part in public affairs and elections

·          Right to freedom of thought, conscience and religion or belief

·          Right to a fair trial

·          Privilege against self-incrimination

 

 

 



 

 

The Bill promotes the following rights: 

 

Right to Privacy

 

The prohibition on interference with privacy and attacks on reputation is contained in article 17 of the International Covenant on Civil and Political Rights (ICCPR) to which Australia is a signatory. Article 16 of the Convention on the Rights of the Child (CRC) and article 22 of the Convention on the Rights of Persons with Disabilities (CRPD) also apply.

 

The prohibition on interference with privacy and attacks on reputation prohibits unlawful or arbitrary interferences with a person's privacy, family, home and correspondence.  It also prohibits unlawful attacks on a person's reputation. It provides that persons have the right to the protection of the law against such interference or attacks.

 

This bill allows individuals and households to opt out of receiving unsolicited door to door telemarketing calls to their home. This will reduce the incidence of unwanted interferences and disturbances to people at home, enhancing their privacy and protecting their home and family time.

 

Rights of people with disability

 

The rights of people with disability are contained in the Convention on the Rights of Persons with Disabilities (CRPD) to which Australia is a signatory. The Convention on the Rights of Persons with Disabilities (CRPD) recognises the barriers that people with a disability may face in realising their rights.

 

Article 5 of the CRPD reaffirms that people with disability are entitled to the equal protection and equal benefit of the law. Similarly, article 12 commits countries to ensuring that people with disability can exercise legal capacity in all aspects of their life and receive appropriate support to do this if required.

 

The bill provides an easy way for people with a disability to opt out of receiving unsolicited door to door marketing calls, providing choice and control over the type of visitors attending the household and helping to protect against potential exploitation or abuse. 

 

Right to take part in public affairs and elections

The right to take part in public affairs and elections is contained in article 25 of the International Covenant on Civil and Political Rights (ICCPR) to which Australia is a signatory. Article 5 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) , articles 7 and 8 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and article 29 of the Convention on the Rights of Persons with Disabilities (CRPD) also apply.

The right to take part in public affairs and elections guarantees the right of citizens to stand for public office, to vote in elections and to have access to positions in public service.

Schedule 1 of the Bill provides clear exemptions to allow ‘designated’ marketing calls to ensure political parties, independent members of parliament, political candidates and their delegates are not prevented from making door to door calls thereby promoting the right to engage in public affairs and elections. 

 

Right to freedom of thought, conscience and religion or belief

The right to freedom of thought, conscience and religion or belief is contained in article 18 of the International Covenant on Civil and Political Rights (ICCPR) to which Australia is a signatory.  Article 5 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) and article 14 of the Convention on the Rights of the Child (CRC) also apply.

This right provides that all persons have the right to think freely, and to entertain ideas and hold positions based on conscientious or religious or other beliefs.  Subject to certain limitations, persons also have the right to demonstrate or manifest religious or other beliefs, by way of worship, observance, practice and teaching. 

 

The bill provides clear exemptions in Schedule 1 section to ensure political, religious and not for profit organisations which are engaged in issues of thought, conscience religion and belief are not prevented from making door to door calls , thereby ensuring the right to these freedoms is not impinged.

 

Right to a fair trial

Fair trial and fair hearing rights are contained in article 14 of the International Covenant on Civil and Political Rights (ICCPR) to which Australia is a signatory. Article 40 of the Convention on the Rights of the Child (CRC) and article 13 of the Convention on the Rights of Persons with Disabilities (CRPD) also apply.

The right to a fair and public criminal trial or a fair and public hearing in civil proceedings is one of the guarantees in relation to legal proceedings. Fair trial and fair hearing rights include:

  • that all persons are equal before courts and tribunals, and
  • the right to a fair and public hearing before a competent, independent and impartial court or tribunal established by law.

The other guarantees are the presumption of innocence, and minimum guarantees in criminal proceedings, such as the right to counsel and not to be compelled to self-incriminate.

The Bill provides that the federal courts will hear matters involving contravention of civil penalty provisions.



 

The Bill limits the following right:

Privilege against self-incrimination

The privilege against self incrimination is provided for in Article 14(3)(g) of the International Covenant on Civil and Political Rights to which Australia is a signatory. It has also long been recognised by the common law and applies unless expressly abrogated by statute.

 

The Bill explicitly removes the privilege against self incrimination to assist the Registrar to identify and deal with breaches. However it also provides that the evidence can only be used for the purposes of the Act or proceedings relating to the Act, and not in any other criminal case against the person compelled. 

 

This is therefore an important measure in protecting the right of the person against incriminating themselves in other, unrelated, criminal matters and ensures the limitation does not apply beyond what is necessary for the function of the Act.

 

Conclusion

This Bill is compatible with human rights. By providing a mechanism by which individuals can voluntarily opt out of receiving door to door marking calls it promotes the right to privacy and the rights of people with disabilities.

 

Through the function of ‘designated marketing calls’ for political, religious, and not for profit organisations it protects the right to take part in public affairs and elections, the right to freedom of thought, conscience and religion or belief.

 

Through its penalty provisions it protects the right to a fair trial with matters to be heard in the Federal Court. Although it limits privilege against self incrimination the evidence cannot be used in any other criminal case against the person compelled and is therefore an appropriate limitation.

 

Steve Georganas MP