Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Telecommunications (Consumer Protection and Service Standards) Bill 1998

Part 9A Telephone sex services

   

158A   Simplified outline

                   The following is a simplified outline of this Part.

•      This Part prohibits unacceptable conduct by telephone sex service providers, and carriage service providers, in relation to telephone sex services.

•      Conduct is unacceptable if the customer:

               (a)     has not agreed in writing to the supply of telephone sex services; and

               (b)     has not been issued with a Personal Identification Number or some other means of limiting access by other persons to the telephone sex service.

•      If a carriage service provider engages in unacceptable conduct in relation to a telephone sex service, charges for the service must not be included in a bill sent by or on behalf of the carriage service provider to the customer concerned.

•      The supply of other goods and services must not be tied to the supply of a telephone sex service.

•      The regulations may prohibit or regulate the supply, advertising or promotion of a specified telephone sex service.

158B   Unacceptable conduct in relation to a telephone sex service

             (1)  A telephone sex service provider or a carriage service provider must not engage in unacceptable conduct in relation to a telephone sex service (within the meaning of subsection (2)).

Note:          Telephone sex service provider is defined by section 158K.

             (2)  For the purposes of this Part, if:

                     (a)  a telephone sex service provider uses a standard telephone service to supply a telephone sex service to an end-user in Australia; and

                     (b)  the supply is by way of a voice call; and

                     (c)  a person (the relevant customer ) is a customer of a carriage service provider in relation to the voice call; and

                     (d)  a charge for the supply of the telephone sex service is expected to be included in a bill sent by or on behalf of the carriage service provider to the relevant customer;

the telephone sex service provider and the carriage service provider are taken to have engaged in unacceptable conduct in relation to the telephone sex service unless:

                     (e)  the relevant customer has agreed in writing to the use of the standard telephone service to supply telephone sex services in general; and

                      (f)  the telephone sex service provider has reason to believe that:

                              (i)  the relevant customer has been issued with a Personal Identification Number that provides a means of limiting access by other persons to telephone sex services supplied using the standard telephone service; or

                             (ii)  the relevant customer has been provided with some other means of limiting access by other persons to telephone sex services supplied using the standard telephone service; and

                     (g)  the telephone sex service provider has reason to believe that:

                              (i)  if subparagraph (f)(i) applies—the end-user of the telephone sex service has used the Personal Identification Number referred to in that subparagraph to access the telephone sex service; or

                             (ii)  if subparagraph (f)(ii) applies—the end-user of the telephone sex service has used the other means referred to in that subparagraph to access the telephone sex service; and

                     (h)  the voice call is made to a number with an approved prefix.

Note 1:       Telephone sex service is defined by section 158J.

Note 2:       Approved prefix is defined by section 158H.

             (3)  Subsection (1) is a civil penalty provision .

Note:          Part 31 of the Telecommunications Act 1997 provides for pecuniary penalties for breaches of civil penalty provisions. Subsection (1) is a civil penalty provision for the purposes of that Act.

Charge for supply of telephone sex service not to be included in bill

             (4)  If a carriage service provider engages in unacceptable conduct in relation to a telephone sex service (within the meaning of subsection (2)), a charge for the supply of the telephone sex service must not be included in a bill sent by or on behalf of the carriage service provider to the relevant customer.

             (5)  Subsection (4) is a civil penalty provision .

Note:          Part 31 of the Telecommunications Act 1997 provides for pecuniary penalties for breaches of civil penalty provisions. Subsection (4) is a civil penalty provision for the purposes of that Act.

Agreements

             (6)  An agreement referred to in paragraph (2)(e) has no effect for the purposes of this section if it deals with a matter other than the use of a standard telephone service to supply telephone sex services.

Defence

             (7)  In any proceedings against a carriage service provider under Part 31 of the Telecommunications Act 1997 that arise out of this section and relate to a telephone sex service supplied using a standard telephone service supplied by the carriage service provider, it is a defence if the carriage service provider establishes:

                     (a)  that it did not know; and

                     (b)  that it could not, with reasonable diligence, have ascertained;

that the standard telephone service was, or was to be, used by a telephone sex service provider to supply the telephone sex service.

             (8)  For the purposes of subsection (7), in determining whether a carriage service provider could, with reasonable diligence, have ascertained whether a standard telephone service supplied by the carriage service provider was, or was to be, used by a telephone sex service provider to supply a telephone sex service, the following matters are to be taken into account:

                     (a)  whether any inquiries were made of persons who proposed to use standard telephone services to supply commercial services by way of voice calls;

                     (b)  whether persons who use standard telephone services to supply commercial services by way of voice calls are under any contractual obligation to notify the carriage service provider of the nature of those commercial services;

                     (c)  whether the carriage service provider monitors, or arranges for the monitoring, of advertisements that are:

                              (i)  for commercial services supplied by way of voice calls made using standard telephone services; and

                             (ii)  published in mass-circulation newspapers or mass-circulation magazines circulated in Australia;

                     (d)  any other relevant matters.

158C   Supply of goods or services not to be tied to the supply of telephone sex services

             (1)  A person (the first person ) must not:

                     (a)  supply, or offer to supply, goods or services; or

                     (b)  supply, or offer to supply, goods or services at a particular price; or

                     (c)  give or allow, or offer to give or allow, a discount, allowance, rebate or credit in relation to the supply or proposed supply of goods or services by the first person;

on condition that the person to whom the first person supplies or offers or proposes to supply the goods or services will agree to the supply of one or more telephone sex services.

             (2)  Subsection (1) is a civil penalty provision .

Note:          Part 31 of the Telecommunications Act 1997 provides for pecuniary penalties for breaches of civil penalty provisions. Subsection (1) is a civil penalty provision for the purposes of that Act.

             (3)  An expression used in this section and in section 47 of the Trade Practices Act 1974 has the same meaning in this section as it has in that section.

158D   Regulations may prohibit or regulate certain telephone sex services

             (1)  The regulations may prohibit or regulate any or all of the following:

                     (a)  the supply of a specified telephone sex service;

                     (b)  the taking of specified calls to a specified telephone sex service;

                     (c)  the use of a standard telephone service to supply a specified telephone sex service;

                     (d)  the use of a standard telephone service to carry specified calls to a specified telephone sex service;

                     (e)  the advertising of a specified telephone sex service;

                      (f)  the promotion of a specified telephone sex service.

Note:          A telephone sex service or call may be specified by name, by inclusion in a specified class or in any other way.

             (2)  Regulations made for the purposes of subsection (1) may make provision with respect to a matter by conferring on the ACA or the Australian Broadcasting Authority a power to make a decision of an administrative character.

Compliance

             (3)  The following provisions have effect:

                     (a)  a telephone sex service provider or a carriage service provider must not contravene regulations in force for the purposes of paragraph (1)(a), (b), (c) or (d);

                     (b)  a person must not contravene regulations in force for the purposes of paragraph (1)(e) or (f).

             (4)  Subsection (3) is a civil penalty provision .

Note:          Part 31 of the Telecommunications Act 1997 provides for pecuniary penalties for breaches of civil penalty provisions. Subsection (3) is a civil penalty provision for the purposes of that Act.

158E   Aiding, abetting etc.

             (1)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of subsection 158B(1) or (4), 158C(1) or 158D(3); or

                     (b)  induce, whether by threats or promises or otherwise, a contravention of subsection 158B(1) or (4), 158C(1) or 158D(3); or

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection 158B(1) or (4), 158C(1) or 158D(3); or

                     (d)  conspire with others to effect a contravention of subsection 158B(1) or (4), 158C(1) or 158D(3).

             (2)  Subsection (1) is a civil penalty provision .

Note:          Part 31 of the Telecommunications Act 1997 provides for pecuniary penalties for breaches of civil penalty provisions. Subsection (1) is a civil penalty provision for the purposes of that Act.

158F   Evidentiary certificate—telephone sex service

             (1)  The Australian Broadcasting Authority may issue a written certificate stating that a specified service is, or was, a telephone sex service.

             (2)  In any proceedings under the Telecommunications Act 1997 that relate to this Part, a certificate under subsection (1) is prima facie evidence of the matters in the certificate.

             (3)  A document purporting to be a certificate under subsection (1) must, unless the contrary is established, be taken to be a certificate and to have been properly given.

158G   Onus of proof—agreement and limiting access

                   In any proceedings against a person under the Telecommunications Act 1997 that relate to this Part, it is to be presumed, unless the contrary is established, that paragraphs 158B(2)(e), (f) and (g) are not applicable.

158H   Approved prefix

             (1)  For the purposes of this Part, each of the following is an approved prefix :

                     (a)  1901 or, if there is in force a written determination made by the Minister or the ACA specifying another prefix for the purposes of this paragraph, that other prefix;

                     (b)  if there is in force a written determination made by the Minister or the ACA specifying a prefix for the purposes of this paragraph—that prefix.

             (2)  A determination under paragraph (1)(a) or (b) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

158J   Telephone sex service

             (1)  For the purposes of this Part, a telephone sex service is a commercial service supplied using a standard telephone service, where:

                     (a)  the supply is by way of a voice call made using the standard telephone service; and

                     (b)  having regard to:

                              (i)  the way in which the service is advertised or promoted; and

                             (ii)  the content of the service;

                            it would be concluded that a majority of persons who call the service are likely to do so with the sole or principal object of deriving sexual gratification from the call.

             (2)  However, a service is not a telephone sex service if it is a therapeutic or counselling service provided by a person registered or licensed as a medical practitioner, or as a psychologist, under a law of a State or Territory.

158K   Telephone sex service provider

                   For the purposes of this Part, if a person uses, or proposes to use, a standard telephone service to supply one or more telephone sex services, the person is a telephone sex service provider .

158L   Voice call

             (1)  To avoid doubt, a reference in this Part to a voice call includes a reference to a call that involves a recorded or synthetic voice.

             (2)  In determining the meaning of a provision of the Telecommunications Act 1997 , or a provision of this Act other than this Part, subsection (1) is to be disregarded.

158M   Savings of other laws

                   This Part is not intended to exclude or limit the concurrent operation of any law of a State or Territory.

158N   Transitional

             (1)  This Part does not apply to a telephone sex service that is supplied before the end of the period of 6 months beginning on the date of commencement of this section.

             (2)  However, an agreement referred to in paragraph 158B(2)(e) may be entered into before, at or after the commencement of this section.