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Unsolicited Political Communications Legislation Amendment Bill 2021

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2019-2020-2021

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

Unsolicited Political Communications Legislation Amendment Bill 2021

 

 

 

EXPLANATORY MEMORANDUM

and

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

 

 

 

 

 

 

Circulated by authority of the Member for Mayo, Ms Rebekha Sharkie MP



Unsolicited Political Communications Legislation Amendment Bill 2021

 

OUTLINE

 

The Unsolicited Political Communications Legislation Amendment Bill 2021 (the Bill) proposes to amend the Commonwealth Electoral Act 1918 (Electoral Act) and the Spam Act 2003 (Spam Act).

 

The purpose of the Bill is to provide consumers with more control over the receiving of unsolicited electronic and telephone communication from political parties by addressing exemptions to laws that otherwise prohibit or limit telemarketing and spam communication.

 

In summary, the Bill amends:

 

-           the Electoral Act to ensure actors used for the purposes of a political telephone campaign are identified as such at the beginning of the voice call.

 

-           the Spam Act to require political parties to provide an unsubscribe function for all unsolicited electronic communication, including SMS, containing electoral content that aims to influence the way electors vote in a federal election.

 

Background to measures in the Bill

 

The measures in the Bill stem from concerns raised by individuals in relation to the volume, frequency or desirability of unsolicited communications from political parties which are currently not subject to the restrictions imposed through the Spam Act.

 

The concerns of individuals relate to not only the intrusiveness of unsolicited communication, but also the use of personal data without express consent, and the lack of a remedy to stop or avoid this type of unsolicited communication.

 

With regards to electoral communication, the measures in the bill seek to strike a balance between the rights of consumers to act on their choices and the freedom of political parties, independents and candidates to communicate with voters.

 

The Spam Act prohibits unsolicited commercial electronic messages, broadly defined under section 5 of the Act as messages sent via email, instant messaging, SMS and MMS. However, the Act provides an exemption for designated commercial electronic messages . These are defined in Schedule 1 of the Spam Act as electronic messages sent by government bodies, political parties, charities and educational institutions. Schedule 1 also outlines the types of factual content that must be included in these messages.

 

Unlike other commercial messages sent electronically, designated commercial electronic messages are not required to include a functional unsubscribe facility.

 

This means that there is no avenue for voters to avoid unwanted unsolicited texts from political parties, independents and candidates, and this has prompted more than 4,000 complaints to Australian Communications and Media Authority (ACMA) in 2021. However, ACMA is powerless to act on these complaints.

 

The bill would require all electronic messages containing electoral matter, as defined in section 4AA of the Electoral Act, to contain an unsubscribe facility. This is regardless of whether the communication is for a commercial purpose as defined in the Spam Act.

 

Voters may view unsolicited texts from a political party or candidate as an invasion of privacy, spam, or generally unwelcome. Providing for an unsubscribe function would give voters some control over unsolicited and unwanted electronic communication, and may assist ACMA, without interfering with the implied freedom of political communication protected by the Constitution.

 

This Bill will also require actors in voice calls featuring electoral material to be identified, to make it clear to those listening that the actors are performing a part ( for instance, posing as a nurse, teacher, small business owner, etcetera) and are not to be mistaken for ‘real’ people.

 

FINANCIAL IMPACT

 

The bill will have no financial impact.

 

 



 

NOTES ON CLAUSES

 

Clause 1:  Short Title

 

1.      This clause is a formal provision and specifies the short title of the Bill as the Unsolicited Political Communications Legislation Amendment Act 2021 .

 

 

Clause 2: 

 

2.      This clause provides for the commencement of the Act on the 28 th day after it receives Royal Assent.

 

 

Schedule 1 - Amendments

 

Amends the Commonwealth Electoral Act 1918

 

Item 1

 

Requires actors, performing as a person in a particular occupation or in certain circumstances, to be identified as an actor.

 

Schedule 1 - Amendments continued

 

Amends the Spam Act 2003

 

Item 2-14

 

Adds “political electronic messages” or “political” with affect to capture communications from political parties in clauses that currently refer only to commercial email and other types of commercial electronic messages.

 

Item 15

 

Requires individuals or organisations sending a political message to include an “ unsubscribe message providing recipients with a opt out option.

 

 

Item 16-27

 

Adds “political electronic messages” with affect to capture communications from political parties in clauses that currently refer only to commercial email and other types of commercial electronic messages.

 

 

 



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

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

 

Unsolicited Political Communications Legislation Amendment Bill 2021

 

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 purpose of the Bill is to provide consumers with more control over the receiving of unsolicited electronic and telephone communication from political parties by addressing exemptions to laws that otherwise prohibit or limit telemarketing and spam communication.

 

Human rights implications

 

This Bill does not engage any of the applicable human rights and freedoms.

 

The measures contained in the Bill regulate the manner in which organisations conduct unsolicited voice and electronic communication to individuals.

 

The Bill does not prohibit the provision of information but rather provides consumers with a choice as to what information they receive and from whom.

 

 

Conclusion

 

This Bill is compatible with human rights and freedoms as it does not engage any of the applicable human rights, or otherwise andy human rights issues.

 

 

 

Rebekha Sharkie MP