2019-2021

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

SPAM AMENDMENT (UNSOLICITED POLITICAL COMMUNICATIONS)

BILL 2021

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of Senator Griff)

 

 

SPAM AMENDMENT (UNSOLICITED POLITICAL COMMUNICATIONS) BILL 2021

 

OUTLINE

 

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

 

In summary, the Bill amends:

 

-           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.

 

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

 

 

Background to measures in the Bill

 

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

 

The concerns of voters 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.

 

The measures in the bill seek to strike a balance between the rights of voters 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 hundreds of complaints to the Australian Communications and Media Authority (ACMA) about unsolicited SMS, particularly before and during elections, including in the months leading up to the 2019 election. However, ACMA is largely powerless to act on these complaints.

 

During the 2019 Federal election the use of robocalls and text messages to target voters received widespread media coverage particularly the use of this political campaigning technique by the United Australia Party (UAP) and more recently by UAP again which resulted in thousands of complaints to ACMA.

 

Voters are concerned about the intrusive nature of this type of political campaigning and are concerned about such messaging disseminating disinformation

 

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 the 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, in order 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.

 

This complements reforms to the Electoral Act which require that the identity of the person or entity authorising any electoral communication to be disclosed, and that (as outlined in the Commonwealth Electoral (Authorisation of Voter Communication) Determination 2021 ) this disclosure must occur at the beginning of the telephone call.

 

FINANCIAL IMPACT STATEMENT

 

The amendments in the Bill are not expected to have any direct financial impact on Commonwealth revenue or expenditure.

 

 

ABBREVIATIONS

           

Bill                                          Spam Amendment (Unsolicited Political Communications) Bill 2021

 

ACMA                        Australian Communications and Media Authority

 

DNCR Act                              Do Not Call Register Act 2006

 

Electoral Act                           Commonwealth Electoral Act 1918

 

Spam Act                                Spam Act 2003

 

UAP                                        United Australia Party

 

NOTES ON CLAUSES

Clause 1: Short Title

This bill once enacted is to be cited as the Spam Amendment (Unsolicited Political Communications) Act 2021 .

 

Clause 2: Commencement

 

Clause 2 provides for the commencement of the provision in this Act.

 

The table in clause 2 specifies when the Bill’s provisions will commence.  The whole Act is to commence the day after the Act receives the Royal Assent.

Clause 3 - Schedules

Each Act specified in a Schedule to this Act is amended or repealed as is set out in the applicable items in the Schedule.  Any other item in a Schedule to this Act has effect according to its terms.

There is one schedule to the Bill.

Schedule 1—Amendments

Schedule 1 contains amendments to the Spam Act 2003 and the Commonwealth Electoral Act 1918 .

 

Commonwealth Electoral Act 1918

Item 1 - Subsection 321D(5)

This item requires voice calls (as defined in the DNCR Act) communicating an electoral matter to a person must identify the use of any actors. This ensures actors used for the purposes of a political telephone campaign are clearly identified as such, and that this occurs at the outset of the call, as outlined in the Commonwealth Electoral (Authorisation of Voter Communication) Determination 2021 .

Item 2 - Application provision

This specifies that the amendments in item 1 apply to voice calls made after commencement of the item.

 

Spam Act 2003

Item 3 - Section 3

This change to the Act’s simplified outline reflects the expansion of the Act to cover electoral matter, not just commercial electronic messages, as outlined in the amendment at Part 2A.

 

Item 4 - Section 4

This clause includes subsections 18A(1) and (6) in the definition of civil penalty provisions of the Act.

Item 5 - Section 4

This clause provides for a definition of unsubscribe message , as outlined in subsection 18(9).

Item 6 - After Part 2

This item inserts proposed Part 2A, which specifies that all electronic messages (as defined in the Spam Act) that contain electoral matter (as defined in section 4AA of the Electoral Act) and which have an Australian link (as set out on section 7 of the Spam Act) must also contain a functional unsubscribe facility.

The electronic messages are not required to be commercial electronic messages.

The amendment provides that an electronic message which originates from or was authorised in Australia and which is about electoral matter must include a clear and conspicuous statement advising the recipient that they can unsubscribe through an electronic address set out in the message. The electronic address must be functional, and able to handle a reasonable amount of traffic at all times of the day for at least 30 days after the message was sent.

This amendment is consistent with section 18 of the Act requiring commercial electronic messages to contain a functional unsubscribe function.

Subsections (2), (3) and (4) are defences to the offence in sub-section (1). The defendant bears the evidential burden in subsection 5 as they are in a unique position to provide evidence on the matters included in a defence. An evidential burden requires only that the defendant must adduce sufficient evidence when raising a defence.

The offences contained in subsections 18A(1) and (6) are civil penalty provisions and subject to the pecuniary penalties outline in Part 4 of the Act.

Item 7 - After clause 2 of Schedule 1

The intention of this clause is to omit the need for government bodies and registered charities to include an unsubscribe facility in electronic messages deemed to be a designated commercial electronic message .

Item 8 - Clause 3 of Schedule 1 (heading) 

This repeals the heading “Government bodies, political parties and charities” and replaces it with the heading ‘Political parties”.

Items 9 and 10

Item 9 removes the reference to a government body, which is now dealt with in proposed new clause 2A, so that the clause relates to designated commercial electronic messages sent by a political party.

Item 10 stipulates additional criteria, that commercial electronic messages sent by a political party must include a functional unsubscribe facility in order to be deemed a designated commercial electronic message.

Item 11 - Application provision

This item provides that the amendments to the Spam Act made by items 3 to 11 apply to electronic messages sent after the commencement of the amended Schedule.

 

Statement of Compatibility with Human Rights

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

 

Spam Amendment (Unsolicited Political Communications) 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 Bill will better protect the privacy of consumers through the creation of an “opt out” system for receiving unsolicited political communications.

The bill seeks to balance the rights and needs of voters without unduly interfering with the electoral activities of political parties, members and candidates. The Bill provides minor additional restrictions on unsolicited communication from political entities while providing an option for action should voters choose to avoid future unsolicited SMS 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 political parties, members and candidates conduct unsolicited voice and electronic communication to individuals.

A restriction on the manner in which political parties can communicate with individuals may engage the implied right to freedom of political communication however any infringement is limited by section 43 of the DNCR Act which upholds the implied constitutional right.

Australia is a signatory to the International Covenant on Civil and Political Rights (the ICCPR) and the International Covenant on Economic, Social and Cultural Rights (the ICESCR).

Article 19(2) of the ICCPR recognises the right to freedom of expression, including the right to receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of a person’s choice. While Article 15(a) of the ICESCR recognises the right of everyone to take part in cultural life.

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

 

Conclusion

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

 

Senator Griff