Introduction
In response to increasing community concern about the growth in unsolicited telemarketing calls (from both within and outside of Australia), a national Do Not Call Register (“DNCR”) has been established under the Do Not Call Register Act 2006 allowing individuals to register their home and mobile numbers. Similarly, telemarketers can submit calling lists to the register operator for checking telephone numbers against the register.
The Australian Communications and Media Authority (“ACMA”) has the authority and responsibility under the Act to establish the DNCR.
Registration of Numbers
A person may list both their Australian fixed line and mobile telephone numbers on the DNCR, provided the numbers are used primarily for private or domestic purposes.
A person’s phone number will remain on the register for three years at which time they need to reregister for a new three-year period.
A person may not register more than 10 numbers over a three-year period from the same email address. However, they may register three numbers at once by way of either registering on the Do Not Call website or by post.
A person may not list business telephone numbers or facsimile numbers on the register. Home numbers that are used primarily for a home-based business may not be listed on the register.
Penalties
There are a range of penalties for breaching the Act, including fines of up to $1.1 million.
A person may also face pecuniary penalties under the Act if they:
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aid, abet, counsel or procure a contravention of the prohibition against calling a number on the register;
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induce, whether by threats, promises or otherwise, a contravention of the prohibition against calling a number on the register;
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are in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of the prohibition against calling a number on the register;
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conspire with others to effect a contravention of the prohibition against calling a number on the register.
Section 11 of the Act outlines the requirements that a person must adhere to if a number is registered on the DNCR.
Under the Act, the Federal Court or the Federal Magistrates Court has the authority, on the application of the ACMA, to order a person (the telemarketer) to pay the Commonwealth a pecuniary penalty. In addition to this, the court may determine whether a person (the victim) has suffered loss or damage as a result of one or more contraventions of Section 11 by the telemarketer. In assessing the amount of compensation payable, the court may have regard to the following:
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the extent to which any expenses incurred by the victim are attributable with dealing with the calls;
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the effect of dealing with calls on the victim’s ability to carry on business or other activities;
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any damage to the reputation of the victim’s business that is attributable to dealing with the call;
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any loss of business opportunities suffered by the victim as a result of dealing with the calls;
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any other matters that the court considers relevant.
Proceedings for a civil penalty order or an application by the ACMA or a victim regarding compensation may be made at any time within six years after the contravention has been made by a telemarketer.
Exemptions
Certain public interest organisations are still allowed to make specific types of telemarketing calls to phone numbers listed on the DNCR. The reason for these exemptions is to ensure that these organisations and individuals can continue to provide services to the community. Exempt organisations include:
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charities or charitable institutions;
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educational institutions;
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religious organisations;
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government bodies;
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registered political parties;
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independent members of parliament;
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political candidates.
Market and social researchers are still permitted to call when conducting opinion polling and standard questionnaire-based research.
Industry Standard
In addition to establishing the DNCR, ACMA has, under the Telecommunications Act 1997, established the Telecommunications (Do Not Call Register) (Telemarketing and Research Calls) Industry Standard 2007 (“Standard”) which governs specific aspects of telemarketing calls and applies to any person or business intending to make “or commission” telemarketing calls, regardless of whether or not they are exempt from complying with the DNCR. The Standard provides clear and enforceable rules in four areas:
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the hours during which telemarketing and research calls may be made;
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information that telemarketers and researchers must provide to the people they call;
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circumstances in which telemarketers or researchers must terminate calls; and
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the enabling of calling line identification.
Further, the Standard provides that:
- telemarketing calls are not permitted after 8:00 pm on weekdays;
- research calls are not permitted after 8:30 pm on weekdays;
- no form of calling covered by the Standard will be permitted before 9:00 am on any day, after 5:00 pm on Saturdays or any time on Sundays or national public holidays.
A person making a telemarketing call must provide the potential customer with both:
- contact information (their name or staff identifier); and
- the purpose of their call.
The recipient of a telemarketing call can request the caller to reveal the source from which they obtained a person’s telephone number, at which time a caller must reveal its source.
In the event a recipient of a telemarketing phone call requests or indicates that they would like the phone call to terminate, then it must be terminated immediately.
The Standard also applies to those organisations who are exempt under the Act.
