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Thursday, 18 September 2003
Page: 20441

Mr McGAURAN (Minister for Science) (9:40 AM) —I move:

That this bill be now read a second time.

The Spam Bill 2003 provides a direct response to a groundswell of business and community resentment and anger that the tidal wave of unsolicited commercial electronic messages, or `spam', is causing to their online activities. The government is taking strong and decisive action to protect Australian online users from the growing, costly and disruptive occurrence of spam. This bill is one key element of the government's strategy to deal with spam.

Spam is often sent to millions of recipients at a time worldwide. It is a common vehicle for promotions that are often illegal, offensive, unscrupulous or use tactics that would not be commercially viable outside the electronic environment. Some of the key issues raised by spam include invasion of privacy, misleading and deceptive trade practices, illegal or offensive content and the cost and distress it causes recipients. The large volume of spam threatens the effectiveness and efficiency of electronic communication and legitimate online business.

Significant privacy issues surround the manner in which electronic addresses used in spamming are collected and handled without the knowledge or consent of the address owners. Lists of electronic addresses are flagrantly traded over the Internet, as are the means to generate them. This activity contributes to the indiscriminate nature of spam, and the automated and repeated sending of messages causes disruptions to electronic messaging networks.

Spammers employ a range of misleading and deceptive methods of disguising their identity. They do this by altering or falsifying the point of origin of their messages to make it appear that the author is legitimate. They can also hijack an account and send spam messages from that account. Spam is diverted through a string of `open relays'—essentially non-secure servers—through which large volumes of spam can be routed, typically without the owners knowledge and often across different countries.

The dominant categories of spam are pornography, financial scams and promotions for dubious `health' products, and we are seeing a disturbing emergence of virus-borne spam. This is of particular concern to the Australian community and the government because the nature of spam means that messages with pornographic, illegal or offensive content are sent indiscriminately, including to minors. Many people find that escaping this deluge is well-nigh impossible and have to resort to changing their electronic address.

The extremely low cost of sending spam, coupled with the ease of sending large volumes, has led to hundreds of millions of spam messages sent around the world each day. It has reached the point where there is as much, or more, spam email as there is legitimate email.

The cost to business is substantial—around $900 per employee per year. It can cause a loss of productivity, damage to reputation, and loss of customers and business opportunities.

This bill shows the government is serious about addressing the problem—both in Australia and by working with other governments as part of an international effort.

The key features of the proposed legislation include:

a consent-based, or `opt-in', basis for commercial electronic messaging;

a recognition of existing customer-business relationships;

restricted, and appropriate, recognition of implied consent, where people advertise their electronic address;

a requirement for accurate sender's details and a functional unsubscribe facility;

support for the development of complementary industry codes; and

a flexible and scalable civil sanctions regime for breaches.

The bill will ban the supply, acquisition and use of address harvesting and address list generation software for the purpose of sending spam, as well as the lists produced using that software.

Courts will also be able to compensate businesses who have suffered at a spammer's hands, and the courts will be able to recover the financial gains made from spammers.

Enforcement of the legislation will be undertaken by the Australian Communications Authority (the ACA). This is a careful and deliberate choice. The ACA has a good understanding of the telecommunications sector, prior experience in conducting investigations and enforcing legislation, and experience in working with industry to develop appropriate codes of practice—all essential qualities for the successful implementation of this initiative.

To ensure that the ACA have the means to effectively enforce the legislation, they will be able to issue formal warnings, seek injunctions and seek investigative and monitoring warrants from the courts. At the lower end of transgressions, an infringement notice scheme will provide an efficient and cost-effective way of providing a fast and fair decision. For those organisations that choose to ignore the law, the penalties could be significant, as the courts can award damages of up to $1.1 million per day in the most severe circumstances.

Enforcement will be just one of the ACA's roles. They will also participate in education campaigns to inform individuals and businesses about options and tools available to minimise spam and research issues relating to spam. In concert with other government agencies, they will also be able to help tackle `the big picture'—working to develop global guidelines and cooperative mechanisms to combat spam. This bill enables recognition of international agreements, treaties or conventions that include provisions relating to spam.

To enable sufficient time for persons or businesses to ensure their behaviour or practices are within the law, the bill provides that the penalty provisions will come into force 120 days after receiving royal assent. This will coincide with the commencement of significant educational and public awareness programs coordinated by the National Office for the Information Economy, NOIE, and involving many representative organisations.

Limited exemptions will apply to messages sent by government bodies, registered political parties, religious organisations and charities. As well as ensuring that there are no untoward restrictions, for example on government-to-citizen communications, it will also avoid any unlikely, but unforeseen, impacts on the charitable sector. This in no way gives governments a `license to spam'—we remain bound by, and committed to, the Privacy Act.

The bill is the result of extensive consultation. The National Office for the Information Economy has provided both an interim and final report on the problem of spam and consulted widely in preparing both. This consultation has continued in preparing this bill, including a detailed examination of an exposure draft of the bill by a diverse group of key community and industry peak representative groups. This has been invaluable in crafting this bill.

A challenge, and a driver, for this legislation is that it must be both technology neutral and able to be adapted to new situations as they arise. The bill allows for the making of regulations for certain provisions to enable the legislation to remain relevant for future technologies and situations. To ensure that the framework remains optimal in this dynamic medium, it is proposed that a review of the operation of the legislation take place 24 months after the commencement of the penalty provisions.

The Spam (Consequential Amendments) Bill 2003, which accompanies the Spam Bill, makes amendments to the Telecommunications Act 1997 and the Australian Communications Authority Act 1997 to enable the effective investigation and enforcement of breaches of the Spam Bill.

This bill will send a powerful message to those engaged in the activities associated with sending spam. It tackles head-on the problem of Australian originated spam and sends a strong message to overseas spammers. Coupled with relevant industry codes of practice, it defines acceptable future conduct and demonstrates the seriousness of Australia's intent in seeking to develop international cooperation to achieve longer term solutions to a growing worldwide problem.

I commend the bill to the House and present the explanatory memorandum.

Debate (on motion by Ms Roxon) adjourned.