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 26 MESSAGE FROM THE SENATE—SPAM BILL 2003

Message No. 370, 28 November 2003, from the Senate was reported returning the Spam Bill 2003 with amendments.

Ordered—That the amendments be considered forthwith.

On the motion of Mr Williams (Minister for Communications, Information Technology and the Arts), the amendments were disagreed to, after debate.

Mr Williams presented reasons, which were circulated, and are as follows:


Reasons of the House of Representatives for disagreeing to the amendments of the Senate

Senate Amendments 1, 2 & 3

These amendments propose to alter the main prohibition of the Spam Bill. The Spam Bill prohibits the sending of commercial electronic messages with an Australian link if the relevant electronic account holder has not consented to the sending of the message. The amendments would provide that a commercial electronic message could be sent without the consent of the relevant electronic account holder if the sender believes that the addressee has a specific commercial interest in receiving the message.

These amendments would dilute the central principle of the Bill, that of consent. The amendment states that commercial electronic messages can be sent without this consent, and, as drafted, does not enable the recipient to indicate a desire not to receive further such messages, and have that wish honoured.

Accordingly, the House of Representatives does not accept these amendments.

Senate Amendments 4, 5 & 8

Amendment 8 removes messages from the meaning of a designated commercial electronic message where the recipient has indicated that they do not wish to receive further such messages. In these cases, the sender will no longer be able to send designated commercial electronic messages to that recipient. Amendments 4 & 5 propose to remove the provision that allows designated commercial electronic messages to be sent without a mandatory unsubscribe facility.

Amendment 8 would have the effect of removing the limited exemption enabling designated commercial electronic messages to be sent without consent. This exemption was included to reduce the risk of unexpected and untoward consequences of the new legislation. Removing this safety net provision is an unnecessary risk, particularly as the Bill contains a 2-year review provision.

Not accepting amendment 8 means that designated commercial electronic messages may be sent without consent, and consequently amendments 4 and 5 are not logical. As designated commercial electronic messages could legitimately be sent without the consent of the recipient, the sender would not be required to act on any unsubscribe requests. A requirement that such messages include an unsubscribe facility could potentially mislead recipients who may assume that their request must be honoured.

Accordingly, the House of Representatives does not accept these amendments.

Senate Amendment 6

This amendment proposes to extend the limited exemption afforded to designated commercial electronic messages to trade unions and not for profit political lobby groups.

The groups defined in Schedule 1, clause 3 of the Spam Bill are generally well understood and therefore closely limited in scope. "Not for profit political lobby groups" is not defined in the amendment, and potentially provides a loophole for people to evade or subvert the provisions of the Spam Bill. In many cases the groups nominated are unlikely to require the protection of an exemption as they are dealing with an established membership, have a relationship with those they are messaging, or would be sending non-commercial messages.

Accordingly, the House of Representatives does not accept this amendment.

Senate Amendment 7

The amendment proposes a change to the provision relating to consent by conspicuous publication. The amendment provides that a conspicuously published address may only be used to send unsolicited commercial electronic messages if the address was gathered in the last six months for the purpose of sending the message.

The idea that an address should have been published recently or possess recent currency in order to be used as a basis for consent is laudable. The proposed amendment does not provide for this however, only that the address should have been gathered recently, with no mention of whether the source of the address was of recent provenance. The amendment therefore imposes an additional administrative burden on senders of commercial electronic messages without clarifying the status of recipients' consent. In order to determine if such an amendment is desirable and to implement it effectively, there would need to be substantial consultation with industry bodies and interest groups. This proposal is not urgently required and could be considered in the context of the two-year review of the legislation.

Accordingly, the House of Representatives does not accept this amendment.


Senate Amendment 9

This amendment proposes to alter the provision relating to withdrawal of consent, so that consent may be withdrawn when it has not been given in the first place.

This amendment dilutes the principle that only the decisions, conduct and business and other relationships of the recipient may be instrumental in providing consent for the sending of commercial electronic messages.

Accordingly, the House of Representatives does not accept this amendment.

On the motion of Mr Williams, the reasons were adopted.