Do Not Call Register Act

73.182 On 3 May 2007, the then Minister for Communications launched the national Do Not Call Register.^[233]The scheme was established under the Do Not Call Register Act,which enables the holder of an account for an Australian telephone number to elect not to receive unsolicited telemarketing calls. The Act was introduced in response to ‘rising community concerns about the inconvenience and intrusiveness of telemarketing, as well as concerns about the impact of telemarketing on an individual’s privacy’.^[234]

73.183 The Do Not Call Register Act enables account holders, and nominees of account holders, to apply to have their telephone numbers included on a Do Not Call Register held by ACMA. This establishes an opt-out regime that is different from the provisions governing the use of information for direct marketing in the Privacy Act.^[235]The Privacy Act prohibits the use of personal information for the secondary purpose of direct marketing unless an organisation draws an individual’s attention to the fact that he or she may opt out of any further direct marketing. The Act also prohibits direct marketing to an individual who has made a request not to receive direct marketing communications. The Do Not Call Register Act, however, prohibits the making of unsolicited telemarketing calls without consent to a telephone number on the Do Not Call Register.^[236]

73.184 The definitions of ‘consent’ under the Privacy Act and the Do Not Call Register Act are broadly consistent. As noted above, under the Privacy Act consent may be express or implied. Under the Do Not Call Register Act, consent can be express or inferred, although it cannot be inferred simply from the publication of the telephone number.^[237] Regulations may specify in more detail circumstances in which consent may or may not be inferred.^[238] If express consent is given, and it is not given for a specified period or for an indefinite period, it is taken to have been withdrawn after three months.^[239]

73.185 ‘Designated telemarketing calls’ are exempt from the prohibition on making unsolicited telemarketing calls to a number registered on the Do Not Call Register. ‘Designated telemarketing calls’ include certain calls authorised by: government bodies; religious organisations; charities or charitable institutions; registered political parties; independent members of the Commonwealth Parliament, a state parliament, or the legislative assembly for an Australian territory, or a local governing body, or a candidate in an election; or educational institutions.^[240]In addition, certain telephone numbers—such as numbers used exclusively for the sending or receiving of facsimile communications—cannot be included on the register.^[241]

73.186 Telemarketers can request information from ACMA about whether a particular telephone number is on the register.^[242] Numbers are registered for a period of three years, after which they are removed from the register unless another valid application for registration of the number is made.^[243]

73.187 ACMA has a range of powers to enable it to enforce the provisions of the Do Not Call Register Act.^[244] In addition, ACMA is required to establish a national industry standard to regulate the conduct of telemarketers, including those exempt from the operation of the Act.^[245] On 22 March 2007, ACMA made the Telecommunications (Do Not Call Register) (Telemarketing and Research Calls) Standard 2007.^[246] The Standard establishes minimum standards in four main areas:

• restricting the calling hours and days for making telemarketing and research calls;

• requiring provision of specific information by the caller;

• providing for the termination of calls; and

• requiring callers to enable calling line identification.^[247]

73.188 There is an exception to the rules where consent has been given in advance by the call recipient to receive the call during the prohibited calling hours.^[248]

73.189 In DP 72, the ALRC noted that a number of stakeholders had raised issues relating to the Do Not Call Register Act. These issues primarily concerned the different requirements for consent under the two Acts and the authorised exceptions for designated telemarketing calls for politicians and electoral candidates.^[249] The ALRC expressed the view that the definitions of ‘consent’ under the Privacy Act and the Do Not Call Register Act are broadly consistent. The ALRC asked whether the Do Not Call Register Act should be amended to remove the exception for registered political parties, independent members of parliament and candidates in an election.^[250]

Submissions and consultations

73.190 Two stakeholders supported the removal of the exemption relating to politicians and electoral candidates.^[251] The DBCDE submitted that the removal of the exemption from the Act would be premature.

73.191 The Department also noted that it is closely monitoring the impact of the exemption on individuals who have placed their numbers on the Do Not Call Register. The DBCDE submitted that it has received a small number of complaints about the impact of the exemption. It noted that the exemption will be considered as part of the legislative review scheduled to commence in 2010.^[252]

ALRC’s views

73.192 The Do Not Call Register Act is an appropriate response to public concern about telemarketing. This is confirmed by the latest complaint statistics released by the TIO. In 2006–07, the TIO reported a 60% decrease in the number of complaints relating to telemarketing which it attributes to the introduction of the Do Not Call Register.^[253]

73.193 In Chapter 41, the ALRC recommends the removal of the political exemption from the Privacy Act. The ALRC accepts, however, that it may be too early to recommend the removal of the exemption relating to politicians and electoral candidates from the Do Not Call Register Act. The ALRC notes that the DBCDE is monitoring the impact of the exemption on individuals who have placed their numbers on the Do Not Call Register. The ALRC agrees that this issue should be considered as part of the legislative review scheduled to commence in 2010.

73.194 Concerns were expressed in submissions about the different approaches to consent under the Privacy Act and the Do Not Call Register Act. The definitions of consent under both Acts are broadly consistent. The Do Not Call Register Act contains additional requirements in relation to consent, including that consent is taken to have been withdrawn at the end of three months. This requirement ensures that telemarketers cannot continue to contact account holders after the time period has elapsed.

73.195 Submissions indicate, however, that more guidance is required. The ALRC has recommended that the guidance on privacy in the telecommunications industry should address the interaction between the Privacy Act and the Do Not Call Register Act.^[254] The guidance should address the requirements to obtain an individual’s consent for the purposes of the Privacy Act and the Do Not Call Register Act.