Telecommunications Legislation Amendment (Unsolicited Communications) Bill 2019 Bills

I thank my colleague opposite Senator Griff for this private senator’s bill, the Telecommunications Legislation Amendment (Unsolicited Communications) Bill 2019, because he is correct: there is a lot of concern in our community about a range of these issues. Just in my own suburb, where the NBN has been rolled out, all of a sudden people, including my own household, are getting phone calls from scammers who are basically threatening that, if we don’t dial or press the numbers they want and respond to them, our phone services, NBN and other things are going to be cut off. Particularly for the elderly, there are real concerns in terms of the impact of the scams and the unwelcome intrusion into their lives. But this bill isn’t specifically looking to address those kinds of scams. It’s looking to address a few other areas.

There are four key areas that Senator Griff seeks to address in this bill. The first is to amend the Spam Act, but it’s not about those people who are seeking to rip off the elderly financially. He is looking to amend the Spam Act 2003 to require political parties to provide an ‘unsubscribe’ function for all unsolicited electronic communications containing political content. He is seeking to amend the Commonwealth Electoral Act 1918 to require that voice calls communicating an electoral matter identify the use of actors at the beginning of the call. He is seeking to amend the Do Not Call Register Act 2006 to enable people who register on the Do Not Call Register to opt out of receiving calls from charities. And he is seeking to amend the Telecommunications Act 1997 to require the Australian Communications and Media Authority to change relevant industry standards to comply with the proposed amendments to the Do Not Call Register Act.

The first comment I would make here is that there are elements of what Senator Griff has put forward that I support. For example, we all remember some of the advertisements we’ve seen in previous elections where people are making heartfelt pleas to the public to look at an issue, but then it transpires, when you dig into it, that they’re not actually genuine mums or grandparents or tradies or whatever but are actors who have been brought in for an ad. There are elements of truth in that advertising. I actually have a high degree of empathy for what Senator Griff is seeking to put forward in that area.

In some of the other areas though, around the ability of elected members to reach the community, to identify areas of concern, I’ve heard mixed feedback about that in terms of charities. There’s been mixed feedback in terms of whether this will have an undue impact on charities. That’s why the work of the Senate is so important in the passage of a piece of legislation. Senator Griff would well know that the normal process is for bills, once introduced, to go to a committee which looks at which of them should be referred for examination.

I happen to chair the Senate’s Environment and Communications Legislation Committee. We would normally get a reference from that committee to look at a bill, so we give a chance for witnesses across the spectrum—members of the public, who Senator Griff has rightly identified, who have concerns but also regulators, in this case charities, and other people—to come and look at the bill and to dissect the bill and say, ‘This would work, but this may have unintended consequences,’ particularly in this area where we also potentially start getting into constitutional issues. I’ve dealt with those on a number of different committees. There are experts in constitutional law who will come to committees and provide detailed evidence as to the likelihood of something surviving a High Court challenge and whether or not the wording or the effect should be changed, such that it is likely to achieve the intended outcome without being subject to a challenge which would actually make the legislation not only not achieve the outcome but potentially cause lots of cost and angst for both the taxpayer, the public or companies down the track. The process we have in place, where a bill will come to a Senate committee for review, is an important part of the process.

My understanding is that, in that committee that looks at this, there has been no move to bring that forward to an investigation by a Senate committee, which means that the Senate has been deprived of the opportunity to seek the views of the broader Australian community—the stakeholders who would be impacted by this—to have their say about the things that they welcome, the things that could be tweaked, and the things that they oppose because of the unintended consequences. For that reason, up-front, I can say the government won’t be supporting the bill. The bill hasn’t been through that process. There are also a number of concerns that the government holds about some of the content.

The protections that already exist are fairly extensive. I will just talk through some of those as well as some of the feedback I’ve had from people about the communications that modern social media, text and online options provide for communicating with constituents. It is fair to say that consumer protection rules have improved over time to give consumers more and more choice around what it is they do or don’t receive. In fact, going back to 2006, the Howard government passed the Do Not Call Register Act 2006 and the Spam Act was passed in 2003 for this purpose. In their day, these were both groundbreaking pieces of legislation.

The Do Not Call Register Act 2006 created the Do Not Call Register, which allows consumers to opt out of unsolicited telemarketing and marketing faxes on their personal phone numbers. There are now approximately 11.7 million users registered on this scheme. I do note—as many people have indicated, in fact, even within my own family—this doesn’t prevent spam calls occurring from overseas. There are numerous people—again, including my own family—who get calls from Tunisia and other parts of the world, where we know no-one and have no business dealings et cetera. So I recognise that, for many people in our community, these Australian based acts don’t necessarily remove the problem entirely. But it is beyond the ability of an Australian based government to regulate what happens in overseas countries.

The Spam Act 2003 provides a legislative protection from spam messages, both internet based and through text messages such as SMS. It’s appropriate for the government to continue to assess consumer protections over time so they remain fit for purpose as technology evolves. The government will continue to assess these and the issues raised in Senator Griff’s bill, but one of the venues for this chamber to have done that would be the environment and communications committees.

People are concerned about not only the texts but also the calls and emails—particularly emails that encourage people to tap on links. Or, as we’ve seen recently with the Australian National University, there is now the potential for emails—even if they’re not opened—to infect a system once they appear in somebody’s inbox. We saw with the ANU the great breaches that occurred there due to those kinds of emails. This is a timely reminder not only for individuals about their own data protection but also for companies and institutions to review where they are up to with their data protection around cyber. If needs be, they can access some of the supports that are available from the Australian Signals Directorate, feeding into hubs around the country where there’s information available to help people with their cybersecurity.

Without consultation with stakeholders through the committee process, the concerns that the government holds have yet to be substantiated. This is part of the reason that we won’t be rubberstamping or supporting a bill without that additional scrutiny here today. Senator Griff has mentioned a number of the concerns. One is the implied right of political freedom, and he believes that he has taken measures within the bill to provide for that. But, again, without constitutional law experts reviewing that, it would be foolhardy of the Senate to just pass it without actually providing the opportunity for expert opinion on what these measures actually provide.

I would like to quickly touch on the existing laws around unsolicited marketing communications. Under the Do Not Call Register Act 2006, telemarketing calls and faxes can’t be made or sent to numbers listed on the register without the consent of the accountholder. Consent can be express—for example, somebody can just tick a box on a form—or it can be inferred—that is, you have an existing business relationship with a stakeholder, who can then communicate with you. Telemarketing calls and marketing faxes are calls and faxes that offer or advertise goods and services, land, and business and investment opportunities. The definition also specifically includes the solicitation of donations. There are various exceptions, including for communications about important things—for example, product recalls, fault rectifications, appointments or payments. I think the majority of people would recognise that, whilst you may not wish to receive a marketing call for a product, if you’ve already bought a product and it is faulty, then you would wish to hear from people about that.

The exemptions also extend to government bodies, registered charities, political parties, election candidates, independent members of parliament, and educational institutions, where they make calls to a current or past member, a past student, or their households. These were designed, at the time, to protect the broader public interest by recognising, particularly in the case of charities, the important work that charities do. Charities indicate that a substantial amount of the funds that they require to operate comes through the operation of people who solicit donations through telemarketing. So one of the things that a Senate inquiry would do would be to provide an opportunity for charities and the charity regulator to look at what the implications would be, what the alternatives would be and to get feedback from the broader Australian community as to, if they wish to continue to give to charities and if it isn’t through telephone marketing, what other avenues may well work.

I’ll move on to electronic messages. Under the Spam Act 2003, commercial electronic messages such as text messages and emails with an Australian link are prohibited without consent. Again, it can be expressed or inferred consent, along the lines of telemarketing calls and faxes, but it doesn’t specifically include the soliciting of donations. Messages that have been consented to must include a functional ‘unsubscribe’ facility. The exemption still applies for factual issues such as the recall of a faulty product, and there are still exemptions under that act for registered charities, government bodies, registered political parties and educational institutions—although in that last case only if they’re communicating with past students. Again, these exemptions operate because of the public interest which was foreseen at the time the bill went through.

When it comes to political communication and freedom of political communication, one of the things I have observed through my time both in the House of Representatives and here in the Senate is that there are some in our community who wish they could hear more from their elected members, particularly outside of an election cycle. People sometimes get cynical and say, ‘The only time we hear from an elected member of parliament is during an election cycle.’ On the other hand you have people who object to newsletters, emails or other things, if they receive them, and say, ‘We don’t want our inbox or physical letterbox filled up with your junk.’ There is a diversity of opinion across our community. One of the things that I have found useful is to have regular communication with people on topics that they are interested in.

The way to establish what people are interested this is to give them the opportunity to give feedback to the office. As I look at Acting Deputy President Sterle, it might be transport issues. People might be interested in road safety and the condition of roads. It might be the health system, education or national defence. There are several ways that people who are elected can do that, whether it be through surveys we include with things like new-elector letters, whether it be through putting a QR code on a survey or any information we send out to the population, or whether it be through using some of the more modern technologies such as automated polls.

Under the legislation the government passed, there is identification that it is an electronic poll being conducted on behalf of a particular political party or elected member, so people, if they don’t want that, can hang up at that point. They don’t have to participate. But for the number of people who have participated in the ones that I’ve conducted, where they have given feedback and said, ‘Yes, these issues are important to us,’ I’ve had staff follow up with a personal phone call to those people where they have left a phone number they’ve been happy to be contacted on. We have then followed up with a regular email when there are significant issues that occur in the portfolio areas that they are interested in.

If we’re going to restore trust in our institution of parliament, there have to be vehicles whereby elected members of parliament can consistently—not just during an election period, but consistently—reach out with material that is valuable to the individual constituent. It doesn’t mean smothering them with the latest talking points from a party; it means having a method to engage and ask: ‘What are the policy or local issues that are important to you? How can I communicate with you more effectively?’ My concern is that if we start closing down some of those avenues we will get back to a point where people will only hear from elected members, candidates or political parties in the run-up to an election, which will just breed cynicism. And as we look around the world, with the rise of totalitarian regimes, if ever there was a time when we needed people in Australia to value their democracy—the fact that they have a say in electing who will represent them in government and making laws—it is now. Modern communications, whether it be using emails, text messages or social media, are one avenue whereby elected members can reach out, engage with people, find out what they’re interested in and talk with them.

The implied freedom of political communication is a critical part, I believe, of communicating between elected members representing the institution of the parliament and representing their constituents. I would be very reluctant to pass laws that made that process less effective without the kind of inquiry that the Senate legislation committees apply so that we can fully understand what would work, what may have unintended consequences and what could be improved.

On that basis, whilst I recognise and applaud the intent behind Senator Griff’s private member’s bill, I note the fact that it hasn’t had the normal scrutiny that this chamber affords to bills to give all the stakeholders involved the opportunity to have their say, and the fact that there are a number of questions that have been raised about either the efficacy or the unintended consequences of some of the measures proposed, although I support some of those measures and am sympathetic to most. I believe that to support this without that committee process would not be wise, and for that reason I will not be supporting the bill.