Wednesday, 21 June 2006
Do Not Call Register Bill 2006; Do Not Call Register (Consequential Amendments) Bill 2006
Debate resumed from 19 June, on motion by Senator Abetz:
That these bills be now read a second time.
I rise to speak in support of the Do Not Call Register Bill 2006 and the Do Not Call Register (Consequential Amendments) Bill 2006. The purpose of the bills is to establish a list upon which Australians can register their details and opt out of receiving unwanted telemarketing calls. Telemarketing calls made to the telephone numbers of Australians who have registered their details on the Do Not Call Register will be prohibited. For those Australians who do not choose to register their details on the Do Not Call List, protections will be introduced governing a range of issues, including the permitted calling times for telemarketing calls. Labor supports the introduction of these bills and the government’s belated recognition of the need for action to put an end to the scourge of unwanted telemarketing.
Under the bills before the chamber, the Australian Communications and Media Authority, ACMA, will be entrusted with the operation and oversight of the Do Not Call List. ACMA will also be given a range of enforcement powers to ensure that the Do Not Call List is respected, with breaches of the provisions associated with the list ranging from formal warnings and infringement notices to court imposed fines, ranging from $1,100 to $1.1 million.
Unwanted telemarketing calls have been a growing problem in Australia for a number of years. Falling international call charges and the proliferation of low-cost offshore call centres have combined to create a business case for large-scale, indiscriminate international telemarketing campaigns. Unfortunately, Australians have been popular targets for those campaigns. In 2005, Australians received more than one billion unwanted telemarketing calls, a six per cent increase on the previous year. That is around 53 calls per person per year, or 2.7 calls per household per week. It is easy to understand why Australians have become sick and tired of this kind of marketing. For every one of those billion telemarketing calls, an Australian family was interrupted by an unwanted intrusion into their family home. That is one billion occasions in this time-poor era when middle Australia’s ever-shrinking family time was eaten into by unwelcome strangers trying to flog their products.
Australian families already have enough on their plates juggling work and family, and trying to find a balance between earning enough to keep up the mortgage repayments and still having some time to spend with the children. They do not need their precious time wasted by unwanted telemarketing calls. They do not need to try to juggle the phone while they are trying to bath the kids. They do not need to be sold mobile phone plans while they are trying to spend some quality time with one another. And they do not need to be constantly disturbed while they are trying to relax together. Middle Australia deserves a break; they do not deserve to be hassled in this way.
Telemarketing can go beyond being a mere annoyance. When telemarketers go beyond simply being rude and also become unscrupulous, the more vulnerable members of our community are at risk. Many telemarketers are not satisfied with merely intruding on the family home, but also employ aggressive, high-pressure sales techniques. The most vulnerable in our community, such as the elderly and the disadvantaged, are especially at risk from those tactics. There have been many reports in recent times of elderly Australians being pressured into sales by telemarketers who will not take no for an answer.
Unwanted telemarketing calls were the biggest source of complaints to the New South Wales Office of Fair Trading in 2005. Victoria and my state of South Australia also experienced significant surges in the number of complaints received by their fair-trading regulators about unscrupulous telemarketing practices. Labor MPs and senators have received many letters from Australians who tell us they have felt threatened by receiving aggressive phone calls at their homes from people they do not know. Many elderly Australians are understandably uncomfortable rebuffing the aggressive advances of unknown telemarketers who know their names and contact details.
In summary, unwanted telemarketing calls are a nuisance, an invasion of privacy and a threat to the most vulnerable in our community. To its credit, the Australian telemarketing industry recognised that the industry had an obligation to try to curb the excesses of telemarketing in this country. To that end, the Australian Direct Marketing Association developed a self-regulatory Do Not Call List that was signed on to by more than 300,000 Australians. The enthusiasm of Australians to participate in that self-regulatory Do Not Call List is a clear indicator of how fed up middle Australia has become with this issue. However, despite good intentions, this attempt at self-regulation has been almost entirely ineffectual. The self-regulatory list applies only to members of the ADMA and does not include sanctions for breaches of its provisions. The explosion in the volume of telemarketing calls experienced by Australians in recent times is a testament to the failure of the self-regulatory approach.
Given the size of the problem posed by unwanted telemarketing and the failure of the industry to effectively ameliorate these issues itself, it has been clear for a long time that government action was needed to hang up on telemarketers. However, unfortunately it has taken more than two years for the Howard government to be dragged kicking and screaming to the floor of the Senate today to put a stop to these practices.
The Labor Party can claim a significant amount of credit for finally forcing the government’s hand on this issue. It has been our policy to establish a national Do Not Call List since 2004; that is Labor listening to middle Australia and developing a sensible response to a rapidly worsening problem. Our policy was based on the highly successful national Do Not Call List administered by the Federal Communications Commission in the United States that has been signed on to by more than one hundred million households. Labor campaigned on the establishment of the list at the last federal election and has continued to campaign on this issue for the past two years; however, it appeared that the Howard government was not interested in what Australian families want.
The Howard government refused to adopt this policy even after the last election; in fact, it refused to even reconsider it. Last year, the member for Chisholm, Anna Burke, introduced a private member’s bill reflecting Labor’s policy to establish a Do Not Call Register to be administered by the ACCC. The bill was designed to make it illegal for telemarketers to contact Australians who had registered their telephone number with a Do Not Call List. Under Labor’s private member’s bill, telemarketers who contacted numbers on the list would be subject to fines of up to $10,000. In addition, Labor’s bill also banned telemarketing calls to people who chose not to register on the Do Not Call List on public holidays, on Sundays and on any other day between midnight and 9 am or 8 pm and midnight.
When you examine the provisions of Labor’s private member’s bill and the Do Not Call Register Bill before the chamber today, it is clear there is very little substantive difference between the two. Given this, one might ask why the government did not simply support Labor’s private member’s bill in 2005 or enter into discussions with the opposition with an eye to amending provisions in the bill that the government did not support. The government chose not to do that. Instead, the government put cheap political points and cheap political point scoring ahead of the interests of middle Australia.
The Prime Minister and Senator Coonan were happy to play nuisance politics on nuisance calls for more than six months, consigning Australian families to hundreds of millions of unnecessary telemarketing calls. Instead of simply supporting or seeking to amend Labor’s sensible private member’s bill when it was introduced, the government refused to even allow a vote on it. Then, in an arrogant and cynical stunt of the kind that has come to characterise the Howard government, the minister released a discussion paper canvassing the introduction of a Do Not Call Register on the day before Labor’s bill was scheduled to be debated. So we had a bill to be debated in the House on one day. The minister obviously thought, ‘I had better put something out there, because this is probably an issue people care about, so I will put a discussion paper out the day before.’
Sacrificing the interests of middle Australia for a cheap stunt like that is surely the hallmark of a government that has grown arrogant and out of touch. Australian families did not want political game playing on this; they wanted action. That is more than clear from the response to the government’s discussion paper. There were almost 500 submissions, the vast majority being from ordinary Australians, begging for the government to take action to put an end to these calls. However, even this overwhelming support for the introduction of a Do Not Call list appeared to not be enough to spur the complacent and out of touch Howard government into action. Even after the flood of responses to its Do Not Call discussion paper, the government still wasted more than six months before it formed an official response to the issue.
If you compare that to the speed at which this chamber was required to consider—well, barely consider—and at which the government rammed through legislation such as the sale of Telstra, the industrial relations changes and the Welfare to Work changes, the priority—or the lack of priority—afforded to this issue by the government is patent. As a final testament to the government’s inaction, even today, when the government finally appears to be belatedly responding to this problem, we are told by the minister that the list will not be operational until 2007. After two years of dilly-dallying, it will still take the Howard government more than six months to actually establish the register. Meanwhile, phones keep ringing, causing completely unnecessary aggravation for middle Australia.
Why didn’t the government simply support Labor’s private member’s bill last year? Why didn’t the government adopt Labor’s policy for a national Do Not Call list earlier? If it had done so, middle Australia could have been spared at least a year’s worth of telemarketing calls. But instead of playing a constructive game and listening to these people, the Howard government chose to play a childish political game. Instead of taking action in the best interests of middle Australia, the government tried to create a hall of mirrors through which it could claim credit for this policy. Frankly, this kind of behaviour is not good enough. Perhaps the minister and the rest of the Howard government should explain to Australian families why it has delayed on this issue for so long.
Given the Labor Party’s long-term support for the establishment of a national Do Not Call Register, and the fact that the government has almost wholesale adopted our policy on this issue, we will be supporting this bill today. However, that is not to say that this bill is perfect. Unfortunately, despite the time the Howard government has taken to act on this issue, it has still failed to fully address all of the issues posed by unwanted telemarketing. Whilst Senator Coonan noted in the government’s response to the stunt discussion paper that the register would be ‘open to individuals and small business’, in the time between the release of that response and the introduction of this bill, the government has performed yet another backflip. In fact, it was a double backflip.
Backflip No. 1 came when the government recognised the need for a national Do Not Call Register and adopted Labor’s policy on this issue. Backflip No. 2 has come now. Despite the minister promising small business respite from unwanted telemarketing just a few months ago, the minister is today putting before the chamber a bill that offers no protection for small business. Under the terms of this bill, small business owners will be prevented from being able to register their details with the Do Not Call list and protect themselves from unwanted telemarketing. We believe exempting small business from the operation of this register is the wrong decision from government. Small business owners are currently under just as much pressure as Australian families.
Small businesses, whose limited resources are already pushed to the maximum by their core business, do not need the added burden of constantly fending off telemarketing calls. As the deputy chair of COSBOA, the Council of Small Business Organisations of Australia, Tony Steven, said: ‘Constant calls from telemarketers are a time imposition for small businesses. We don’t want to restrict business-to-business marketing, but we should be protected from mass market telemarketing campaigns run by call centres in India.’ Labor believes that participation in the Do Not Call Register should be an issue of choice for small business. If a small business decides they want protection from mass market telemarketing campaigns, they should have the right to turn to the Do Not Call Register for assistance.
However, when it comes to the fight to lift the burden of unwanted telemarketing calls from the shoulders of small business, it appears that this government is in the telemarketers’ corner. That much is clear from the minister’s statement, in which she indicated that rights of small business to protection from harassment by telemarketers must be balanced against ‘the needs for businesses to promote their products and services’. In Labor’s view, the government’s defence of call centre telemarketers in this context is both misguided and unnecessary. The government should not be putting the business interests of an industry that is engaged, at least in part, in undesirable practices ahead of the interests of Australian small businesses. We do not oppose the need for businesses to promote their products and services. However, this promotion must occur in a way that is not offensive to the community.
It is not uncommon for governments to place restrictions on the marketing practices that we permit within our society. Governments do not permit unrestricted advertising in public places and they restrict the content that can be included in advertising. Those restrictions have not prevented businesses from promoting their products or services—far from it. Instead, these public interest restrictions have redirected business’s marketing efforts towards more socially acceptable methods. One would think that the same results could be expected from the introduction of a national Do Not Call Register of which small business can be a part. Instead of being the end of businesses marketing their products, companies will have to stop engaging in annoying telemarketing and find new and hopefully more customer friendly ways to market their services and products.
It is instructive in this regard to examine the outcome of industry predictions of large-scale job losses resulting from the introduction of a national do not call list in the United States. An article in Advertising Age on the US experience after the introduction of the list in the United States said:
Early indications are that the industry is evolving, rather than facing extinction: Many telemarketers appear to have survived by broadening their businesses ...
Similarly, Manpower Inc, a major employer in the US telemarketing sector noted:
... the ‘Do Not Call’ registry didn’t decrease the demand for personnel; it just shifted the work employees had to do.
For these reasons, a Beazley Labor government would not afford the telemarketing industry this kind of misguided and unnecessary protection, and we would ensure that small businesses had the right to register on the Do Not Call List and obtain protection, if they so wished, from unwanted telemarketing calls.
In the final analysis, Labor supports the bills before the chamber and welcomes the introduction of the Do Not Call Register. It is better late than never. After two years of campaigning on this issue on behalf of middle Australia, it is heartening to see that there is some relief in sight. We can only hope that it will not take the minister two years to perform another backflip on her opposition to Labor’s Cleanfeed policy to protect Australian children from internet pornography. Such a backflip would be warmly welcomed by Labor, as I am sure it would be welcomed by those sitting on the government benches. Labor is relieved that, after two years, the government has finally seen the light on the Do Not Call Register Bill 2006. I commend the bill to the chamber.
I rise in my capacity as the Australian Democrats privacy spokesperson to address the Do Not Call Register Bill 2006. Like other parties in this place, the Democrats will be supporting this piece of legislation. Indeed, we have also long supported this idea and welcome the legislation before us. Certainly well before the 2004 campaign the Democrats made clear our support for a register of this kind, being very conscious, as we are, of any invasion of the privacy rights of Australia and indeed of, as Senator Wong has pointed out before us, the irritation factor of telemarketing calls—or the perception of that—among the community.
As the Senate inquiry into this legislation points out, many people have complained that unsolicited phone calls are an inconvenience and an invasion of their privacy. A recent phone-in that was organised by the Australian Law Reform Commission regarding citizens’ privacy issues reported around three-quarters of the 1,300 calls they received related to telemarketing calls. The President of the ALRC, David Weisbrot, remarked that an overwhelming majority of callers were unhappy with the number and the timing of calls they received from telemarketers. Clearly, there is no doubt that it is a significant nuisance and it has been important that the government respond in a comprehensive and sophisticated way to the need for some kind of register.
Essentially, as you have heard, the proposed register places a prohibition on unsolicited telemarketing calls to an Australian number which is registered on the Do Not Call Register. This essentially allows consumers to ‘opt out’ of approaches made by telemarketers. There are of course penalty provisions in the bill, including civil penalties and injunctions for breaches of the act. We believe that the legislation is a definite improvement on the disparate federal, state and voluntary codes of conduct currently governing telemarketing in our country.
It is particularly welcome at a time when so-called privacy rights in this country are increasingly under threat. There are very strong arguments—and certainly a Democrat initiated Senate inquiry into the Privacy Act bore this out—for a tightening of the current loopholes in the Privacy Act. The Privacy Act, which is a light-touch regulatory regime, does require updating, particularly in light of technological advances that have taken place over at least the last six years. The sad truth is that, for every advance in technology, there is a massive increase in a government’s, business’s or any organisation’s ability to directly and indirectly pry into the private affairs of the public. The key to legislation is to at least attempt to stay ahead of the more obvious technological impacts on the lives of Australian citizens.
I would argue that the greatest threat to Australians citizens’ privacy is ahead of us with the so-called smart card that you would be aware of: $1.1 billion over the next four years has been allocated in the federal budget to allow for the establishment of what is effectively a national identity card by stealth. At the same time, what do we give our Privacy Commissioner? I think it was $6.5 million over the next four years in this year’s budget papers—I will double-check that. That kind of increase to the Office of the Privacy Commissioner does little to enable her or the commission generally to keep pace with some of the invasions into privacy in the lives of Australians.
There are some issues with this bill. I know some of them were canvassed during the Senate committee process, and there is a series of three recommendations, which I think are fairly non-controversial, arising out of that report—recommendations with which we agree. I see that the government, at least in one amendment before us, has attempted to address one of the issues in relation to nominations in writing. But there are a number of exemptions in this legislation. The legislation has exemptions that operate under this bill for charities, registered political parties, Independent members of parliament and candidates, religious organisations, educational institutions, government bodies, businesses with an existing business relationship with customers, and calls conducting opinion polls or carrying out questionnaire based research. These are such extensive exemptions that consumers are still going to receive a relatively high number of calls. I am not denying that this will see a reduction in the number of those nuisance or invasive calls that consumers and citizens have made very clear that they are sick of, but I do think that there is a broad-ranging list of exemptions here, and that needs to be addressed. I will seek to address that broad issue in a second reading amendment which I will circulate shortly.
As members would have seen over the last few days, I have circulated an amendment which I gave notice of many weeks ago and which is perhaps not an amendment that will surprise anyone in this place, given my views on the issues of exemptions for political acts and practices from privacy law. I have circulated an amendment that will seek to remove the exemption that exists for politicians, candidates and, obviously, political acts and practices. As I said, that is not going to be a surprise to anyone who knows my interest in this area. When I was responsible for debating on behalf of the Democrats the Privacy Act changes back in 2000, I think initially we had some success with moving a Democrat amendment to remove the exemption that existed for political acts and practices. That was short lived.
Unfortunately since that time, and due to the opposition of both the Labor Party and the coalition, the exemption, which has existed for political acts and practices and thus for politicians and political parties, has remained. We are exempt from the Privacy Act. It is utterly hypocritical that we expect businesses and members of the community to comply with certain privacy regulatory frameworks when we do not adhere to those practices ourselves. We do not adhere to that regulatory framework; we are not respecting the privacy rights of individuals in the same way that we expect others to.
I hope the coalition and, in particular, the opposition will support the amendment which I will move during the committee stage. The issue of politicians being exempt from the Do Not Call Register Bill 2006 is just one part of a larger problem, one part of a privacy exemption that we enjoy. It is a luxury that we enjoy and it is completely inappropriate. I will continue to fight against that luxury and privilege because we do not deserve it and we should not have it. I am not saying that we are not entitled to collect information, be it about consumers, constituents or what have you, but the basis of the privacy principles and the premise of our Privacy Act and law—whether it applies to the private or public sector—is the right to be able to challenge, view and correct information that is held about you.
As politicians, surely we should be among the most accountable when it comes to collecting, storing or analysing that information. I am going to elaborate for the Senate on some of the privacy breaches for which politicians are responsible. We hail the secret ballot as a vital component of a healthy democracy, but while we maintain the right to vote anonymously, political opinions and sympathies of citizens are being recorded on mass databases operated by the major political parties. When the privacy law was extended to the private sector, this exemption was put in place with the support of both major parties. This exemption enables the major parties to disregard the privacy of Australian citizens in the pursuit of votes. As a consequence, politicians are now among the worst violators of privacy rights in Australia.
We know that both major parties have extensive databases—Feedback, I think, in the case of the coalition, and Electrac in the case of the Australian Labor Party—which record the political leaning of voters. That is not a secret. Starting with the basic contact information obtained from the electoral roll and the phone book, these databases are supplemented with sensitive information about the political views of individuals obtained, for example, when constituents ring talkback radio, write a letter to the newspaper or simply contact their local member of parliament. Office staff are often trained to log the details of all telephone conversations, correspondence and face-to-face meetings and to put it into the database. Further information is of course gathered from telephone polling by so-called independent organisations which sometimes fail to disclose that the polling has been commissioned by a political party.
All political parties commission polling, so all of this can apply to any political party, political organisation or indeed any political individual. Of particular concern, though, is the way in which parties handle postal vote applications from their constituents after requesting that such applications be returned to them rather than sent directly to the Australian Electoral Commission. I understand that in the case of at least one party they assume the voting intention of an individual based on the party to which they return that postal vote application. This information is then recorded on the party’s database. For example, if a person returns their postal application to a Liberal member of parliament, they are assumed to be a ‘leaning’ voter in favour of the Liberal Party and tagged accordingly. If they return their application to a non-incumbent Liberal candidate, then they are tagged as a likely Liberal voter.
This practice raises serious concerns regarding the right to vote anonymously and the complete absence of any consent relating to the collection and storage of such information. Another concern, the key concern for privacy and privacy principles, is that constituents do not have the right to access information that is held about them or to correct that information if it is inaccurate. This is the basis of the privacy principles. Why would we shy away from those principles? It is particularly problematic given the sensitive nature of information that is contained on some databases and the theoretically potentially dubious accuracy of that information, not to mention that political views or votes can be fluid and are susceptible to change over time. People might want to correct the record.
With these concerns in mind, the stated justification for exemption from the Privacy Act—in this case, exemption from the Do Not Call Register Bill—namely, that it is intended to encourage freedom of political communication and to enhance the political process, rings rather hollow. Why are we afraid of accountability and transparency in this regard? The unregulated operation of political databases has the potential to diminish public confidence in the democratic process, to discourage constituents from contacting their local members of parliament and to potentially distort the political process by skewing it in favour of swinging voters.
I think this hypocrisy has to end. It is hypocritical for us to expect industry groups, community groups and other groups to comply with the privacy legislation that exists in this country when we are not willing to comply with it ourselves. As I have said, I have repeatedly moved to try to remove this exemption and to get rid of this double standard. I will be doing that again with a private member’s bill, which will be introduced tomorrow. In the meantime, the amendments that I will move today, not just the committee stage amendment but the second reading amendment, will deal specifically with this bill.
So this is ‘line in the sand’ time. This is a chance for political parties to indicate where they stand on the Do Not Call Register Bill and whether politicians should be exempt from that legislation. It applies to politicians, candidates and Independent members of parliament—all of us—and therefore we should be removing that exemption. I acknowledge some of the other concerns that have been raised in the Senate committee—some of those are technological—given that this legislation is based largely on the Spam Act 2003. Probably the best way of proceeding with the definition of consent and some of those issues is to ask the government how it is dealing them in the committee stage.
Again, on the issue of exemptions, the Democrats’ concerns are strongly backed up by the submission provided to the Senate committee by the Australian Privacy Foundation. I want to put this on record very clearly. When they talk about the exemptions in their very comprehensive submission they say:
The rules regulating exemptions are of the greatest importance as they risk seriously undermining the value of the Do Not Call Register. The starting point must be that the rights to opt-out should be no less than those which are currently provided under NPP2.1(c) of the Privacy Act 1988. There are no reasons for, or legitimacy in, providing exemptions that go beyond what is catered for in that instrument.
They go on to say, and I think this is a pivotal point:
In our view, provided that the Register is sophisticated enough to allow selective registration, there is no need for exemptions at all. In other words, as long as a registrant can choose to register to avoid calls from e.g. religious organisations, charities and political parties and candidates, and still allow for calls from e.g. existing business contacts, government bodies and market researchers, there is no reason to provide for exemptions to the Do Not Call Register.
In other words, it is saying that if you come up with a register that is sophisticated enough so people can have that ‘opt out of’ process—they can specify who they do and do not want to receive calls from—then why do you need these broad-ranging exemptions in the legislation before us?
In point 26 of their submission to the committee, the Privacy Foundations say:
In addition to the above, there are several other reasons why exemptions are not necessary. First, as is stressed in the Discussion Paper, there are other less intrusive means by which businesses and organisations can approach people. Second, people always have the right to say ‘no thanks’ once the call is made anyhow. Thus, the Register simply constitutes a means for people to say ‘no thanks’ before the harm is done. This observation is perhaps particularly relevant in relation to research calls (which is the call type that may be most heavily supported by a ‘public interest’ argument)—people have the right to decline taking part in the research, and the option of exercising that right through a specific choice on a Do Not Call Register cannot be said to be against the ‘public interest’.
They conclude the exemptions aspect of their submission by stating:
If, contrary to our preference, an exemption is granted for social/market research, it should be linked to clear criteria/definitions, such as the Association of Market and Survey Research Organisations (AMSRO) Market and Social Research Privacy Principles ... which require that no personal information is disclosed to the client.
So, while we are supportive of this legislation, there are still some loopholes.
In relation to other concerns that have been raised publicly and through the committee process, we understand that there may be some costs to local small business communities, especially in terms of the cold canvassing which for many years has been a useful marketing tool. There are also potential costs to small businesses associated with having to search the register to see who is part of it. Nevertheless, those concerns side, we are still satisfied that the greater public good is being served by this legislation and the privacy provisions that are afforded by this bill.
Perhaps the only other issue that may need further clarification is that the government should release the estimates for the register’s access fees as soon as is possible. I do not know if the government have some views on that that they may want to share during the committee stage so that the public is aware of costs, if any, associated with using this service. I will also ask during the committee stage if there are any comments from the government on the recommendations contained in the Senate committee report.
I note in the submission from the Privacy Commissioner that her suggestion was that there be a public awareness and education campaign associated with the introduction of the Do Not Call Register. I am hoping that the government will allocate sufficient resources to ensure such a campaign is able to be established. Having said that, given the miserly amount that was allocated to the Privacy Commissioner—$6.5 million—in the federal budget, I am not holding my breath to ensure that that is done, but it is a worthy recommendation by the Privacy Commissioner, and I hope it will be acted upon.
I move the second reading amendment standing in my name:
At the end of the motion add:
“but the Senate notes that:
(a) the bill does not apply to registered political parties, independent members of parliament, candidates, government departments, religious organisations, charities or educational institutions; and
(b) these exemptions risk seriously undermining the value of the Do Not Call Register”.
It is a fairly straightforward amendment that deals with the issue of noting exemptions, particularly exemptions applying to registered political parties, independent members of parliament, candidates, government departments, religious organisations, charities and educational institutions. Those exemptions could actually be dealt with in another way based on the sophistication and the selectivity processes of the register, so those broad-ranging exemptions potentially do undermine the value of the Do Not Call Register Bill. During the committee stage I will seek to remove the exemption that applies to politicians.
Telemarketing calls are very much one of the scourges of the modern world and, in recent years, they have grown at an alarming rate. The Commercial Economic Advisory Service of Australia has estimated that in 2004 there were over one billion telemarketing calls made from Australian call centres.
The government, in responding to community concern, has introduced this legislation to establish a national Do Not Call Register. I think Senator Wong’s remarks in her contribution earlier about the government’s position in addressing this problem were rather gratuitous and unnecessarily self-serving. There is similar legislation in other countries such as Canada, the United States and United Kingdom. The issue of telemarketing is one which is widely recognised as a problem, and the Howard government has moved to deal with it in Australia with this legislation.
The Do Not Call Register Bill 2006 and the Do Not Call Register (Consequential Amendments) Bill 2006 were referred to the Senate Environment, Communications, Information Technology and the Arts Legislation Committee for inquiry and report, as Senator Stott Despoja stated. I chaired that inquiry. No public hearings were held but the inquiry was conducted on the basis of submissions received, and more than 200 submissions were received.
Under the legislation, account holders and their nominees will be accorded the right to opt out from receiving telemarketing approaches by placing their fixed line and mobile phone numbers on a do not call register. Once a telephone number is registered, telemarketers, except those who are exempt, will be prohibited from contacting a registered number unless they have prior consent. In order to be included on the register, a telephone number must be used or maintained primarily for private or domestic purposes. This effectively precludes small businesses from including their numbers on the Do Not Call Register. This has been done on the basis that many small businesses advertise their telephone numbers for the purpose of attracting additional businesses, and businesses commonly contact other businesses for a myriad of purposes during the course of their day-to-day operations. Accordingly, the government decided that it was better not to potentially expose organisations to fines and penalties for ordinary business to business contact.
The advantage of the opt-out model proposed in this legislation is that it will create efficiency gains for telemarketers in that it will allow them to better target people who are receptive to their calls. It is expected that there will be one million registrations in the first week of the Do Not Call Register’s operation and four million more during the first year. Importantly, given the increasing utilisation of overseas call centres, especially in India, the Do Not Call Register will also apply to calls made from overseas telecentres to an Australian number. Where calls are made from an overseas number on behalf of an Australian company to a telephone number on the register without consent, the Australian Communications and Media Authority can pursue the local organisation that the telemarketer is calling on behalf of. The Do Not Call Register Bill will not have the effect of completely eliminating telemarketing calls but it will substantially eliminate the most annoying unsolicited calls received by consumers.
Submissions to the committee’s inquiry were generally supportive of the concept of a national do not call register, but a number of issues were raised. The issue raised most consistently in submissions was that around consent. Telemarketers will be able to call numbers on the Do Not Call Register if the relevant account holder or their nominee has consented to the call either expressly or by inferred consent. The committee heard concerns that calls made to people with whom a caller has an existing business relationship are not adequately protected under the bill.
Arguments were put to the committee that the concept of inferred consent in the context of an existing business relationship is too narrow and uncertain. On this basis, there were calls for existing business relationships to be given an express exemption from the register, as applies in the USA, the UK and Canada. The committee, however, did not believe that such an exemption was appropriate, because it would significantly curtail the effectiveness of the register. Simply because an organisation can establish an existing business relationship does not mean that it would be reasonable to infer that a person has consented to receiving all telemarketing related calls from that organisation. In particular, there is a fundamental difference between a customer that has accounts or contracts with an organisation and a one-off casual purchase from that organisation.
As the department told the committee:
Under the proposed Australian model, businesses would be able to call individuals on the Do Not Call Register with whom they have a relationship as long as it would be reasonable for them to infer that the individual has consented to the call.
The explanatory memorandum explains this further:
The extent of the consent will be a matter of fact to be determined on the particular factual circumstances.
The committee was of the view that this approach provides sufficient protection to both businesses and registrants. Businesses may continue to contact their clients, but only when it would be reasonable. Moreover, if a registrant wanted to receive telemarketing calls from a particular organisation, there is nothing to stop that registrant from expressly consenting to receive calls from that particular organisation. On this note, some submitters outlined their concern that express consent would be valid for a period of only three months. This appears to arise from a misreading of the bill. Three months is effectively the default period. Schedule 2 of the Do Not Call Register Bill clearly states that express consent is taken to be granted for three months only if a different time period is not agreed to by the consumer. This means that consent could be agreed to indefinitely until such time as the registrant revokes it.
Another concern raised was that the register will be a register of phone numbers rather than of individuals. The primary reason for this is to protect the privacy of individuals on the register. As the department told the committee:
A register based on numbers ensures that the only consumer information that telemarketers will be able to receive from the Register will be the telephone number of the registrant. No corresponding name or address will be released.
It is also worth noting that this is the approach taken in both the United States and the United Kingdom.
The bill places the decision of whether or not to be on the Do Not Call Register in the hands of telephone account holder, rather than individuals. Concerns were raised that, in the context of households, the decision of an account holder to place their telephone number on the register will prevent other people in the household from consenting to receive telephone calls. On the basis that it is the telephone account holder that is responsible for paying the bill, the committee felt this was a reasonable outcome. Even though one person living in the household might consent to receiving calls, others may still end up answering the phone. After all, when a phone rings, it does not identify who in the household the call is for. Moreover, the committee did not receive any complaints from individuals opposed to the Do Not Call Register on the basis that they would not be able to receive telemarketing calls.
The bill also contains a mechanism by which people who are not the account holder but are sharing the same house as the account holder can consent to receive telemarketing calls. The legislation allows the account holder to make other people nominees. A telemarketing call to a number that is on the Do Not Call Register is acceptable if a nominee of the account holder consented to the call.
The Australian Direct Marketing Association expressed concern that a telemarketer would not be able to verify whether an individual is a nominee or not. However, the committee felt that there are a range of ways in fact that they will be able to verify this—for example, they could ask the person consenting to receive telemarketing calls if they are the account holder or the nominee; they could contact the account holder and ask if the person is a nominee; or they could request a copy of a written nomination. Moreover, where a person claims to be the account holder or nominee and turns out not to be, telemarketers will be able to avail themselves of the defence of using reasonable precautions and exercising due diligence.
Another provision of the bill allows a nominee to apply on behalf of the account holder to place a number on the register. Under the bill, consent for nomination can be provided either orally or in writing. The committee was concerned that this might be open to abuse and, accordingly, it has made a recommendation that, in order to ensure appropriate and legally certifiable authorisation, consent should be given in writing only.
Under the terms of the legislation, unless they are removed earlier, numbers will remain on the register for a period of three years before they will have to be reregistered. Some concern was expressed about this requirement during the course of the inquiry. However, the committee was convinced that it is an unavoidable nuisance in order to ensure that the register remains relatively up to date. With approximately 17 per cent of the Australian population moving home each year, three years is considered an appropriate time frame to strike a balance between the need for accuracy of information and the need to require registrants to reregister each year.
Nonetheless, the committee is concerned that people need to be reminded of the requirement to reregister every three years and has, accordingly, recommended that the government examine options to ensure that telephone account holders receive an effective reminder prior to the expiry of their registration on the Do Not Call Register.
The legislation includes a limited number of exemptions for organisations that operate in the public interest. These include charities, religious organisations, educational institutions, registered political parties and nominated political candidates, as well as government bodies. This is in line with the successful do not call regimes used in both the United States of America and the United Kingdom.
The government considered that it is especially important that charities be exempted from the register. Telemarketing is an important means of raising funds and assists charities to provide worthy and much needed services and support to the community. The Royal Institute for Deaf and Blind Children, for example, said in its submission that in 2005 it raised $2.1 million from its telemarketed lottery sales.
The government considers market research and social research to have a genuine public interest benefit, and those calls that do not have a commercial type purpose within the meaning of the bill will not be subject to the Do Not Call Register.
It is important to recognise that individuals will still be able to make use of the private sector provisions of the Privacy Act, which means that they will still be able to ask many exempt organisations not to call them should they strongly object to such calls.
Optus made a submission to the committee which raised some concerns in relation to the penalties contained in the bill, including the provisions relating to compensation and the recovery of a financial benefit. In relation to single errors that result in contraventions over multiple days, Optus advocated:
that penalties should be imposed on a per incident basis rather than on a per call, per day (contravention) basis.
The committee has drawn these concerns to the attention of the minister and suggested that they be given due consideration.
Because consumers, regardless of whether or not their telephone number is on the register, will still continue to receive telemarketing calls, the legislation will enable the establishment of minimum contact standards to which all telemarketers must adhere, including all of those organisations that are exempted from the register. The standards will cover matters such as permitted calling hours, minimum information to be provided to recipients of calls and minimum requirements around the termination of calls.
The committee and the government believe these bills represent an appropriate response to the undoubted scourge of unsolicited telemarketing calls and I commend them to the Senate.
I rise today to speak on the Do Not Call Register Bill 2006 and the Do Not Call Register (Consequential Amendments) Bill 2006. Labor welcome this legislation and hope that its outcomes will reduce the burdens on Australian phone subscribers and prevent unwelcome and unwarranted solicitation. While we support this bill and subsequent amendments, I would like to recognise, as some of my colleagues have already, Labor’s pressure on the government in bringing this issue into legislative consideration. I wish simply to say that we on this side did campaign heavily on this during the last federal election, and Kim Beazley has been pushing this issue for some time now, as has my colleague Senator Conroy. I also acknowledge the member for Chisholm, Anna Burke, for her very strong work in this area. She introduced a private member’s bill in the House of Representatives which was very similar to this bill, and she should feel some satisfaction in the outcome, knowing the very positive role that she as a Labor member has played.
I do, however, question the actions of the Minister for Communications, Information Technology and the Arts, Senator Coonan, in that the public has been forced to wait six months for this debate just so that we could allow a bit of water to run under the bridge before adopting Labor’s policy. As a result, the Do Not Call Register will effectively not be in place now until 2007. It is interesting to note that the United States implemented this type of law in 2003, and the United Kingdom in 1995.
As recently as this year, Telstra released some figures from its unwelcome calls unit. These figures were a confronting insight into how big a problem this is in the community. They said that, of the 1,500 unwelcome calls each day, no fewer than 700 related to telemarketing. I am not sure what the figures were in 2004, but they could well be slightly higher, as it was in 2004 that the Liberal Party made pre-recorded unsolicited calls to citizens as they were sitting down to have dinner. As the member for Cunningham said, at least they employed Australian workers, including some notable ones! I would simply say that this bill is long overdue and, to the many constituents who have contacted my office over the past 12 months, will be most welcome.
The real winners here, as they should be, are the people of Australia. In looking at my own encounters with telemarketers over the years, I have considered all of the aspects, including the fact that the poor person working for the telemarketing company must endure a fairly tough working life. One would no doubt need a very thick skin to absorb some of the verbal abuse that they are prone to receive in that industry. Unfortunately, the majority of these calls are very annoying and occur at the most inopportune times. So the fact that these people are only following a company directive cannot be considered before privacy and respect and, for those who desire it, the right to live in what is essentially a telemarketing-free household.
There are some, I know, who believe that advertising is the greatest art form of the 20th century. Whether or not you subscribe to this view, I would argue that we live in a world that is inundated by commercial advertising. Although it plays an important role in the economy, Australian home life already involves a great deal of exposure to it via electronic and print media, and it is the view of many that they do not need any more.
Yet it is not all bad for those involved in the telemarketing industry, and in many ways this bill will make their procedures more structured and organised. Perhaps the most positive aspect that comes to mind is that the workers—in this case, the call operators—will be able to expect far less abuse as a result of knowing in advance that they are calling a person who has not registered to be exempt from such calls. Let me also say that some in the industry have also endeavoured to address this problem of intrusion and, over the years, there have been attempts to develop a code of conduct. Unfortunately, however, there has not been enough effort or commitment across the board to stem the problem and hence this legislation that is about to be put in place.
This bill is about giving power back to consumers. It is about giving citizens the legal right to prevent the intrusion of unwanted and unsolicited telephone calls into their homes. I know the bill is eagerly awaited by many people in the community, particularly the elderly and disadvantaged. It can be very confronting for the elderly to have a person propose the sale of a product or service and then require them to hand over their personal details. Through my constituents, I have heard of cases where people have become confused by the confrontation of the telemarketing process and have ended up saying yes and signing up for products and services without really knowing the full consequences of their actions.
The nuts and bolts of this bill are to significantly curb the number of unsolicited phone calls from telemarketing companies to people’s homes, should those people wish. It is important to note this: people must request registration on the Do Not Call Register. It will not be automatic. There are of course some exemptions, such as certain charity groups and a number of other public interest organisations, which I will touch on shortly. The request to be put on the register can apply to home phones and mobile phones, which is important considering that many people today have their mobile phone as their main point of contact.
The bill allows for civil sanctions for any breach of the provisions and outlines the potential for substantial monetary penalties for such breaches. As the explanatory memorandum states, the enforcement and oversight related to this bill will be carried out by the Australian Communications and Media Authority, ACMA. ACMA will have the power to formally caution those in breach and will have the ultimate power to apply to the Federal Court for an injunction if it is required. The bill also allows for the victims of a breach to be eligible for compensation. This legislation essentially strengthens the position of ACMA, enabling it to carry out its enforcement role more effectively. The parameters of this include a requirement for ACMA to develop an industry standard setting out various minimum contract standards. This will provide times during which telemarketers are permitted to call and state what information they must provide in relation to their organisation.
The Environment, Communications, Information Technology and the Arts Legislation Committee report on this bill, tabled on Monday, made several recommendations. I encourage senators to view these recommendations. They are not suggestions by the committee that seek to change this bill’s structure, the way it has been drafted, yet they do have strong validity in the overall debate.
The first recommendation of the committee suggests that the government examine options to ensure that telephone account holders receive an effective reminder prior to the expiry of their registration to the register. The rationale behind this is due to the register not being a permanent request. A reminder would serve to prevent any conflict with individuals suddenly finding themselves back on the radar of telemarketers. The committee also recommends that, in order to ensure appropriate and legally certain authorisation, consent to register should only be given by means of written consent. The reason for this recommendation is essentially due to the bill not actually saying that the nomination to register has to be made to the body administering the register. The written aspect of a request would allow the telemarketing companies to request a copy to distinguish in black and white from whom and from where the request came.
This bill does not restrict all organisations from making calls to people’s homes. The rationale behind this is that some organisations require access to people in their homes to further benefit the general community. These include charities, registered political parties, independent members of parliament and candidates, religious organisations, educational institutions and government bodies. The exemptions are important. As we have noted, the submissions from charities stated that this method of encouraging people to give generally is the most effective method. The work of charities is something that is valued and should be encouraged. I am sure that it is the unanimous feeling of senators on both sides of the chamber.
Financially, the bill’s implementation was covered in the 2006-07 budget, which sets aside $33.1 million that will be applied over four years. Approximately $15.9 million will be recovered from the telemarketing industry. This recovery will essentially occur through payment of fees to access the register, so the balance left is an investment by the taxpayers to rid themselves of this problem.
As a member of the Senate Environment, Communications, Information Technology and the Arts Legislation Committee that conducted the inquiry, I would like to place on record my thanks to the 33 organisations and individuals who made submissions to the committee. Some were very good submissions, and they proved valuable to those serving on the committee. Finally, we support the bill and we are glad to see the coalition listening to the Labor Party on policy. Along with thousands of Australians, I too look forward to the first day of the implementation of the Do Not Call Register.
The Do Not Call Register Bill 2006 and Do Not Call Register (Consequential Amendments) Bill 2006 are long overdue. Unsolicited telemarketing calls are like that other intrusive element of the electronic age, spam—that is, neither desired nor desirable. I am yet to meet an Australian who thinks that having someone ring you up to offer you aluminium cladding is a good thing, and I am yet to discover an Australian who wants to swap their telephone company each time that someone contacts them with some unbeatable deal. From personal experience, I have seen the same telemarketing company ring day after day offering the exact same deal to swap telephone companies. What is it about the people running these operations that they think that the answer is going to change from yesterday, two days ago, last week, last month or, in fact, anytime in the last year? The one thing they do have going for them, however, is persistence. They persist even after you hang up on them. They persist even if you are rude to them. They persist even if you do not answer the phone. That is the essential problem with unwanted phone calls.
Where once most of us saw the telephone as a means of keeping in contact with friends and family, as a means of requesting assistance in the event of an emergency and as a means of doing business, we are increasingly seeing it as a necessary evil. Of course we still want to keep in touch with friends and family, and having that ability to reach out for assistance when required is vital. However, we balance that now with the risk that, each time we pick up the phone to answer it—especially around meal time—there is a very good chance that it will be some faceless person trying to flog us some product that we do not want.
Where once it was limited to your home phone, you cannot even escape it in the workplace now. My office is often rung by telemarketers trying to sell us some product or other, usually mobile phones. Even after they are informed that they have contacted the office of an Australian parliamentarian they still attempt to sell us something. In fact, it got to the point that I raised the issue with Senator Abetz when he was Special Minister of State. At that point, he informed me that the only thing we could do to get rid of these calls was change our phone number. I do not know any parliamentarian—particularly those who like to espouse the fact that they are constantly available and in touch—who would want to constantly change their phone number to avoid phone calls from India. I understand that the people who work in these organisations have quotas to meet. I understand that they are under pressure to perform. However, that does not grant them the right to intrude on the private lives of our fellow Australians and to disrupt places of work and family homes to flog products that no-one wants.
It used to be relatively easy to avoid spruikers and snake-oil salesmen. If you were walking down the street and saw someone flogging off something, you could avoid them. Most of us cannot take that approach to a phone ringing in our home. We are not sure who is on the other end so we answer it, often to our regret and only to be frustrated time and time again by telemarketers. It has become like logging onto email. Again, something that was designed as an efficient way to communicate with people and to do business is swamped by offers of products and services that no-one wants. How much time that we could be putting to better use are we wasting dealing with unsolicited phone calls and emails?
The proposition is straightforward. As we become time poor both as individuals and as a society, of course we are frustrated more and more by having to waste our time on unwanted promotional material. One of the problems is that it is like junk mail: you can put as many signs as you like on your letterbox, but you cannot always be guaranteed that someone will not put something unsolicited into your letterbox. And of course they do, because the stuff they are trying to give you is not junk. Yes, they accept that all the other stuff is junk, just not theirs.
I do not think I am alone in this. In many households, sorting the mail is now done over the garbage bin. Eighty per cent or more of what is put into my letterbox goes straight into the bin, and the figure is probably the same for telemarketing calls and spam. About 80 per cent of the intrusions into our lives are from unsolicited sources, and all of them waste our time. The reason why spruikers are doing this is because they think that we are missing out on the benefits of what they are offering.
Let us be clear on this. We are bombarded with messages from advertisers. They are on our televisions, on our radios, in newspapers, in brochures, on billboards, on neon signs, in our emails, on the internet and on our telephones. Enough, surely, is enough. When will all this spruiking come to an end? I understand that one of the latest versions is to embed advertising within computer games. So now, even if you choose to avoid mainstream media, it cannot be guaranteed that you will avoid the spruikers.
Let me say this to the spruikers: we are actually getting your messages. We hear them and we see them. They bombard us constantly—so constantly that they are no doubt in our subconscious. The reason we do not want your product is not that your message is not getting through; rather, it is because we do not want your product—full stop, end of argument. Make no mistake about it, the reason that we are flooded with spam and telemarketing calls is because it is cheap. It is cheap to make phone calls when trying to flog a product or service—much cheaper than any other form of communication except spam. The reason it is preferred is that some fool has convinced companies that we respond better to a human voice than we do to printed material. Somewhere, some marketing genius has peddled the line to company executives that we like talking to people. So they take it too far. They take to ringing us up to suit themselves in order to flog their products.
The other strong selling point—excuse the pathetic pun!—is that there is an immediate pay-off for the company. If someone buys a product or signs up for a service, they know immediately. It is much easier for them to track their dollar spend on marketing—in this case the cost of the call—to the return on that spend. They can see in one no doubt easy-to-read computer print-out how many calls to sales were made. It is simpler than trying to track down how much return you get from a newspaper ad, for example. So, for the telemarketer, it is simple. They have a low-cost method of attracting sales, they can measure the success at the end of each phone call, and they do not care how many of the rest of us they intrude upon.
I have seen figures that suggest the take-up rate from spam. Something like one in 40,000 people opens the spam email. Of those, fewer than four in every 1,000 go to the website. Fewer than one in every 100 who goes to the website buys the product. It sounds like lousy odds to the rest of us, but if you send out tens of millions of spam emails, it is worth it. They are cheap to send, and obviously there is money in it. I have not seen comparable figures for telemarketing, but I am sure they cannot be too dissimilar.
That brings me to the great scandal of this bill and the consequential amendments. That scandal is why it took until 2006 to introduce this legislation into the parliament. It is completely unacceptable that the government and successive ministers for communications have taken so long to do something about this ridiculous situation. In 2004, the Australian Labor Party had a policy for a Do Not Call Register run by the ACCC. The then Minister for Communications, Information Technology and the Arts accused the ALP of a knee-jerk, populist reaction. He claimed that thousands of people would lose their jobs, that we had not consulted with stakeholders, and that it was unreasonable to allow our fellow Australians to opt out of receiving telemarketing calls.
The current minister said that we needed a review—and we have heard that all too frequently in this portfolio—and consultation to ensure that we understood all the issues. Even while the current minister dithered while the phone lines burned with lots of unsolicited phone calls, the ALP would not give up on an issue that was important to the overwhelming majority of our fellow Australians. As recently as last year, this government would not even allow a private member’s bill on this to be debated in the other place.
In a piece of myth making of Oliver Stone proportions, the government will run the line that they are the best friends that Australians who want protection from unsolicited phone calls ever had. Contrary to their self-praise, the reality is that they have subjected the rest of us to years of phone calls we did not want. It is estimated that each Australian household receives, on average, 53 unsolicited phone calls from telemarketing companies each week. That means that in one year we are each copping nearly 2,800 calls. In the time since Labor first called for a Do Not Call Register, the Australian people have put up with about 5,600 phone calls they did not want. Given that we are told that, even after the passage of this bill, it will be next year before the register will be set up, we can add another 2,800 calls courtesy of the inaction of this government.
I say to the Australian people: the next time, and the next time, and the time after that that your life is interrupted by an unsolicited phone call, consider writing to Minister Coonan and telling her how much you appreciate the inaction of her government. Just to keep the costs down, send an email. There is no justification for the amount of time that it has taken to get this Do Not Call Register legislation into this place. It is clear that it would have been supported by all parties and would have been assured a relatively quick passage.
The failure here is not a failure of the parliament or of the Senate; it is a failure of the government. It is a failure to appreciate that, no matter how prosperous some in the community have become, time has become our greatest asset. To have our time stripped away dealing with unsolicited phone calls is something that must be laid fairly and squarely at the door of this minister and this government. In the United States, more than 90 million Americans registered with the Federal Trade Commission’s National Do Not Call Registry by 2005. I will watch with interest to see how many Australians choose to do the same thing. I think that we will all be surprised by how many Australians sign up for the Do Not Call Register.
Upon reflection, I believe that one of the main issues that is highlighted by unsolicited phone calls, and also by spam, is the failure of companies to self-regulate. When it is cheap and easy to do something, when they do not care how many people they have to offend to get a sale, and in the absence of decent regulation, we are asking for what we have currently got. If you have the task of selling a product and you have a cheap and simple means of doing it then you will push it as far as you possibly can. Each time you make a call you are only one call away from making your next sale. You do not care that you have already rung that person each day for a week. You do not care that the person may be just sitting down to read to their children or to share a family dinner. All you care about is your next sale. Without regulation from government, who is going to stop you? It does not bother you that a person knocked you back in the past; you just keeping making the calls.
The best hope that the Australian people had to fix this problem—that is, the Australian government—has been missing for years on this issue. There have been years of pretending that it was not a problem, years of conducting reviews to determine that it was a problem, and time spent on drafting these laws. Now there is the final cruel blow: an acknowledgment that we are still going to have to wait yet another year. The first person who should be on the Do Not Call Register, in my view, is the minister. Do not call the minister if you want something fixed.
I rise to speak on the Do Not Call Register Bill 2006 and Do Not Call Register (Consequential Amendments) Bill 2006. Labor has been pushing for the establishment of a Do Not Call Register for quite some time now to prevent, and to protect the public from, unsolicited and nuisance calls. In fact, Labor took this policy to the 2004 election. At that time the Howard government dismissed the policy, saying it could not work in Australia. This is despite the fact that Do Not Call lists have existed in the UK since 1999, in the US since 2003 and in Canada since 2004. However, the Australian government has so far failed to do anything about the problem. It released a discussion paper only in late 2005 when the problem reached proportions that were unacceptable to the Australian community.
Each and every one of us knows the feeling. You finally sit down to dinner with the family, the phone rings and it is a telemarketer. The situation is replayed across the country as people everywhere try to go about their daily lives. The problem with these types of nuisance calls is that the companies behind them make them at times of the day when they know that people are going to be at home. In Tasmania, I have had a very large number of constituents contact me in desperation after receiving numerous calls from organisations attempting to get them to buy a product, switch to another product or submit to a survey or the like. This problem is not a new one. In fact, it has probably been around for as long as telecommunications. Most people would be familiar with the problem of junk mail; however, printed material such as catalogues can be much more easily ignored than irritating telephone calls. Some of us have even grown to enjoy receiving catalogues informing us of the latest sales, but I do not think that anyone would say the same of telemarketing phone calls.
The public consultation period on a discussion paper outlining various models of a Do Not Call Register received 495 submissions, with 90 per cent supporting the establishment of such a register. It is interesting to note that the majority of submissions that did not support the establishment of a register were from companies or businesses who would be adversely affected by such a database. In detail, this register would allow individuals who have an Australian telephone number to register to opt out of receiving unsolicited telemarketing calls. The bills would oblige the Australian Communications and Media Authority to establish a Do Not Call Register which would prohibit telemarketers from calling any number which is on that register. However, there would be some exemptions for specific organisations that would be deemed to be carrying out activities in the public interest and providing services to the community. These would include charities, registered political parties, independent members of parliament and candidates, religious organisations, educational institutions and government bodies.
I know that Tasmanians are not alone in their consternation at continuous disruptions to their lives by annoying phone calls from companies trying to make a buck. As this type of harassment has been going on for years, I believe that the government is way behind the eight ball in introducing suitable legislation to combat the problem. If the demand from constituents in my office for ALP produced fact sheets on how to stop unwelcome telephone calls is any indication, there are many people with this problem in Tasmania and in Michael Ferguson’s electorate of Bass whom the government, in their arrogance, have continued to ignore over the last few years as the problem has worsened.
There are a number of problems with this legislation, not the least of which is exactly what penalty will be dealt out to a call centre which contacts someone on the Do Not Call List. The minister herself has said that, if the person contacted was to report an offending call centre, the centre would receive a fine of anywhere up to $200,000. The problem, of course, is that to report the call centre at all the person must know who the company is that has called, and quite often, and frustratingly for the person being called, these telephone calls are anonymous.
However, this bill does include requirements on the ACMA to implement mandatory industry standard rules on telemarketers relating to the hours during which telemarketing calls may be made, the disclosure of information a telemarketer must make during a call and the termination of calls. My concern with this legislation is that several loopholes may still exist through which telemarketers could continue their dubious practice of contacting people at all times of the day and night, regardless of whether they are on the Do Not Call List. The government must make clear the full extent of what these bills will or will not cover and the penalties to those businesses and organisations which ignore the Do Not Call Register.
Labor, however, is pleased that the arrogant Howard government has finally listened to Labor and adopted a plan to combat the problem—a problem which Labor has now recognised for many years. Australian families have the right to enjoy the privacy of their own homes without worrying about who is on the other end of the phone when it rings. Labor has long recognised this right and supports these long overdue bills.
Everyone hates unwanted calls, whether they be from someone trying to sell a new connection to a telco, flog a so-called trip to the Bahamas or do a survey, which we are always told will only take a few minutes. But surely the most annoying calls of all would be from politicians or political parties. Who wants to be preparing the dinner or getting the kids off to bed and then be harassed by politicians chasing votes or pollsters chasing opinions? It is enough to make you want to disconnect the phone. Who can forget the 2004 election campaign when families across the nation received prerecorded phone messages from the Prime Minister and the Treasurer? Family First says family life stalls when a politician calls.
Family First supports the overall objective of the Do Not Call Register Bill 2006 and the Do Not Call Register (Consequential Amendments) Bill 2006, which is to enable families to declare their homes nuisance call free zones. However, Family First strongly opposes the special exemption for politicians and political parties. What a joke that politicians and political parties have given themselves a green light to bombard Australian families with their annoying calls. Family First believes that the exemption is just another example of hypocrisy—one rule for politicians and another one for everybody else. Why do we politicians think we are so special that we should be above the law? Receiving a phone call at home used to be a happy event, when you could chat with family or friends; these days our homes are like bunkers, with answering machines to filter unwanted calls.
Family First has seen a number of media releases from government MPs spruiking this bill, but not one has mentioned that politicians and political parties get special treatment. Instead, they refer to exemptions for organisations with ‘public interest objectives’, but who would know what that means? Not even the minister’s second reading speech mentioned the exemption for politicians and political parties.
If you told any ordinary Australian that the government was setting up a Do Not Call Register but exempting politicians and political parties, I think I know what their reaction would be. They would probably say two things. One would be, ‘Typical!’ The other would be, ‘What a bunch of hypocrites.’ Perhaps, instead of being called the Do Not Call Register Bill, this legislation should be called the Do Not Call Unless You Are a Politician Bill. I understand that in Britain, where a similar scheme operates, political parties are not given an exemption. Family First will move an amendment to overturn the special treatment for politicians and political parties, because family life stalls when politicians call. I am pleased that the Democrats support Family First on that.
Family First is also concerned that registrations will only be valid for three years, so Australians will have to reregister after three years, even if their phone number has not changed. That does not seem to make sense, and I would appreciate it if the minister could provide some information about why that is the case. Surely it is reasonable to expect that registrations would remain current unless a person’s details changed.
Family First will support the bills because Australian families do not want nuisance calls. However, Family First is disappointed that this legislation is yet another example of one rule for politicians and another rule for everybody else. It is a real shame that, unless Family First’s amendments are supported by the major parties, which I doubt will happen, Australians will still be subjected to the worst nuisance calls of all—those from politicians and political parties.
The Greens support the Do Not Call Register Bill 2006 and the Do Not Call Register (Consequential Amendments) Bill 2006. This legislation is groundbreaking legislation and it deserves support. As other speakers have said, the harassment that people get, particularly at mealtimes, from people making unwanted calls—many of them coming from outside the country—to try to get them to sign up to some scheme or other or to buy some product or other goes beyond the pale. The disadvantage is that the people who are most at home are most affected. The people who are out and about the most miss a lot of those calls. I guess I have just discovered an ameliorating factor for failing to get home very often—but I know where I would rather be.
We will be supporting the legislation. We will also be supporting the amendments, insofar as they would prevent political calls being made to canvass people at election time or between election times and to try to gain political favour. We do not support legislation that allows that. There are conventional ways of advertising to people on their way to the ballot box, and the harassment of getting highly technologically charged and impersonal calls from political parties or politicians is not a good thing. However, we part company with Family First when it comes to polling. If Family First has the means to fractionate polling, we would look at it more seriously. But Australia is a democracy, and opinion making is very often led by asking a sample of people how they think about what the politicians are doing.
Those opinion polls often come up with surprising results. They show trends. They showed the trend, for example, against the government in the Iraq war; mind you, there was majority opinion against the war before the government supported the Bush administration in going to Iraq. They show the favour or disfavour of the government and political parties, that is for sure, but that is not so important as the issues. For example, some remarkable polling quite recently showed that Australians believe that West Papuans have a right to self-determination. Going back to the East Timor issue, it is the same: both the big parties were in favour of the Indonesian dominance of East Timor but the polls showed that Australians felt differently about that.
It is important that we know when representative democracy is failing to be representative, because democracy is also under the power of influence of big money. That means that politicians, particularly the executive, can get it very wrong. How can you put a ban on opinion pollsters ringing people at home to find out what Australians think? How can Family First argue that that is a healthy thing for democracy?
I will show Senator Stott Despoja that she need have no worry. Senator Fielding just argued that political polling should be effectively blocked. You cannot have some of the Australian community ringing up and saying, ‘Put a bar against my name and do not allow people to ring me,’ and then think that you will still get a good representative sample when polling by phone—it would effectively skew that polling. My advice, Senator Stott Despoja, is that your motion does not do that, and the Greens will be supporting it. My advice, contrary to Senator Fielding’s, is that his motion does not do it either—
You are quite right, Mr Acting Deputy President: on this occasion there is no point of order. But let me repeat to you what I thought you could hear: Senator Stott Despoja need have no worry; and I think Senator Fielding is wrong, because I do not think his motion will have the impact of cutting off pollsters, and we would not be supporting it if it did. But, sure, stop politicians and big money.
We have just had legislation go through the chamber which allows an enormous increase in secret donations going to the party machines. The Greens voted against it, but the government got it through. We have just opposed provisions which cut tens of thousands of young people out of voting on polling day. We think this is a black day for democracy. It is a day on which the debate is also on about the government taking over the Senate committee system. I want to make it clear that the Greens would not support another indirect attack on democracy by supporting any motion that would prevent pollsters from doing phone polling on the big issues of the day to gauge what Australians think, and to feed that into the political firmament.
I thank all senators for their contributions to the debate on what, I think we all agree, are very important bills—that is, the Do Not Call Register Bill 2006 and the Do Not Call Register (Consequential Amendments) Bill 2006. I am pleased to note that there is broad support for the legislation in this chamber.
Telemarketing is generally considered to be the most intrusive form of direct marketing and there is considerable public demand for a Do Not Call Register. Today, the government moves to take action against nuisance calls. We will give peace of mind to those who dislike and, indeed, resent the intrusion and disruption caused by unsolicited telemarketing calls. The Do Not Call Register Bill and consequential amendments bill provide a direct response to growing community concerns about unsolicited and unwanted telemarketing calls. Before announcing the creation of a register, the government has consulted widely through the discussion paper process to ensure that there is an appropriate balance between the right of an individual to privacy and the need for businesses to promote their products and services. As with most things we deal with in this chamber, it is that elusive balance that is difficult to achieve.
The telemarketing industry has also called for action, as there are a multitude of differing rules that govern telemarketing practices, including voluntary codes, state and territory legislation and Commonwealth law. None of these regulate the industry in its entirety, and the most annoying callers have been operating with impunity. There is a need to provide telemarketers with more operational certainty and individuals with certainty that they can stop annoying calls. The government is addressing these concerns by giving Australian phone users the right to opt out of receiving unsolicited telemarketing calls and by creating a more consistent and efficient operating environment for the telemarketing industry. The telemarketing industry will also benefit through the introduction of nationally consistent standards covering issues such as permitted calling hours. The register will mean that telemarketers can better target their calls by removing from their contact lists details of individuals who do not want to receive calls.
Under the arrangements set out in the bills, a national Do Not Call Register and telemarketing conduct standards will be established. People who do not wish to receive telemarketing calls would have the option of applying for their fixed and mobile numbers to be recorded on the register. There will be no charge to individuals to put their number on the register. Once a number is recorded, it will be prohibited for telemarketers to contact the number except in specified circumstances. The Australian Communications and Media Authority, ACMA, will be the responsible regulator for the implementation of the register. It will operate the register itself, or it may arrange for a third party to do that.
The scheme will be backed by a range of enforcement options including warnings, fines, formal directions and financial penalties. The scheme will apply to telemarketing calls made within Australia and to calls originating from overseas. The scheme also includes regulation making powers which provide flexibility to respond to any unexpected consequences. For example, if the exemption or consent arrangements are abused or operational difficulties arise, these can be addressed through regulations. Some exemptions are provided for organisations that act in the public interest, such as charities, religious organisations, education institutions and government. Those exemptions have been built into the legislation to ensure that organisations acting in the public interest can continue to contact people. Exempted callers must comply with the national standards established by ACMA. Those standards will include permitted calling hours, information that callers must provide about their organisations and termination of calls.
I note that there has been some discussion in the chamber about political parties and the proposal to exempt them. I note that Family First and the Democrats have concerns with the exemption for political parties, Independent members of parliament and candidates. The government’s decision to exempt political parties from the register is consistent with the other exemptions in the bill, which seek to balance the ability of organisations to undertake socially important work. Political parties, Independent MPs and nominated candidates play a vital role in a democratic society, and it is important that they be able to continue to make a range of calls, including calls seeking donations, to enable them to continue in this role.
The Labor Party has also raised concerns that small businesses are not able to put their numbers on the register. Although I was not in the chamber, I understand that Labor suggested that small businesses should be able to opt out of mass marketing calls from Indian based call centres while continuing to receive business-to-business calls. If I have Labor’s position correct, that is clearly an impossible suggestion from a practical point of view, as both types of calls are still telemarketing calls. After further consultation with the telemarketing industry, practical issues arose that made it problematic to include small businesses on the register. It is not possible for a telemarketer to easily determine the size of the business they wish to call. This would mean that any telemarketer undertaking business-to-business telemarketing would be required to wash their lists against the register.
In addition, businesses change size over time, which makes it difficult to determine whether a particular business is eligible to register and could result in businesses with over 20 people being listed on the register as the business grows over time. Many small businesses advertise their telephone numbers for the purpose of gaining additional business. Businesses contact each other for a multitude of reasons in the ordinary course of day-to-day operations, and the government was concerned not to potentially expose organisations to fines and penalties for what could only be regarded as ordinary business-to-business contact. For those reasons, and in order to keep the scheme focused on the rights of individuals to privacy, small businesses will not be able to place their numbers on the register.
The government has allowed calls to be made where there is express or inferred consent. I want to say a few things about that. Inferred consent is likely to exist where there is a pre-existing business relationship. This will allow businesses to contact individuals for the purpose of offering or selling new products—even if they are registered on the Do Not Call Register—where they have a pre-existing relationship, such as a bank account or a contract phone service, unless the individual has expressed a desire not to be called. For example, if a person has provided their telephone number to their bank, with whom they have a mortgage transaction account and credit card, it would be reasonable for the person to expect to receive marketing calls about the bank’s available mortgage products or credit card arrangements, subject to any contrary intention expressed by the individual. However, if the bank, for example, happened to own a car dealership and called about the purchase of a car, this call would not fall within the notion of inferred consent.
With either express or inferred consent, the business will need to satisfy itself that the consent was validly provided by the relevant telephone account holder or their nominee. That reflects the reality that the account holder should be able to control the calls on their telephone. If a consumer does not wish to receive telemarketing calls from an organisation with which they have an existing business relationship, they can withdraw their consent at any time. I note that a number of submissions to the committee raised concerns about the definition of an organisation under the consent provisions for a pre-existing business relationship. Many of the submissions considered that the definition of an organisation should include bodies corporate or related entities. It appears that there has been a great deal of misunderstanding on this issue, which I would like to now clarify.
For organisations that might choose to structure themselves, for operational reasons, into various entities, the consent provisions do not restrict a telemarketing call in situations in which it could reasonably be inferred that an individual had consented to solicitations from a related company. For example, if a telecommunications company has three operational subsidiaries—networks, mobile and internet—it may be reasonable to infer that an individual with a pre-existing business relationship has consented to receive calls from the various related subsidiaries or networks, subject to any contrary intention expressed.
I note that Senator Fielding raised an issue about the logical rationale for three-year renewal requirements. I want to place on record a response to that. Numbers will remain on the register for a period of three years before they will have to be re-registered. With approximately 17 per cent of the Australian population moving house each year, three years is considered to strike an appropriate balance between the need for accuracy of registration and the need not to require registrants to re-register each year. A number can be withdrawn prior to that time. The process for removing numbers from the register is to be determined by ACMA once the legislation commences.
Just to conclude my summing up remarks, I note that some contributors to this discussion have been critical of the time it has taken to bring forward this legislation. But I do want to put on record that developing what I think is a good public policy approach takes time and careful development. I certainly make no apology for ensuring that a robust and effective register is implemented. The government’s strategy in developing legislation has always been to ensure that we have listened to the views of industry and the community and to design something that appropriately meets the interests of all stakeholders in this matter. In the process, I believe we have managed to develop a package that is an effective response to an identified problem. Those who were worried about any delay can now support this bill in its entirety. I thank all those who have contributed to the debate.
That the amendment (Senator Stott Despoja’s) be agreed to.
Original question agreed to.
Bills read a second time.