Australian Cyber Law Map

Unsolicited Communications

16 December 2022 - 14:13 | Version 6 | JenniferWestmorland

Unsolicited communications or 'spam' refers to unsolicited telemarketing, fax marketing, commercial emails, SMS and MMS. In Australia, these communications are regulated by the Spam Act 2003 (Cth) and the Do Not Call Register Act 2006 (Cth). The Australian Communications and Media Authority is responsible for handling complaints and enforcement.

The regulation of unsolicited communications differs from other regulatory environments because the industry to which the Spam Act 2003 (Cth) and the Do Not Call Register Act 2006 (Cth) apply is not clearly defined. These Acts may apply to any industry sector that markets by telephone or email to Australian consumers. In general, the ACMA actively monitors the compliance of an entity only if a complaint or report has been made in relation to the entity’s marketing activities.
See Regulation of Unsolicited Communications, Australian National Audit Office (14 July 2015)

The Spam Act 2003 (Cth) establishes a scheme to regulate commercial email and other commercial electronic messages. The Act defines commercial electronic messages as being ones that offer, advertise or promote the supply of goods, services, land or business opportunities; advertises or promotes a supplier of those items; or assists someone to gain property or a commercial advantage.
Under Parts 2 and 3 of the Act:
- unsolicited commercial electronic messages must not be sent;
- commercial electronic information must encompass accurate details about the individual or organisation which authorised the transmission of the message;
- commercial electronic messages must encompass an unsubscribe option that works;
- address-harvesting software must not be supplied, obtained or utilised, including to develop an electronic address list.
The Act applies to most organisations with an annual turnover of less than $3 million (the Privacy Act 1988 (Cth) regulates organisations over this threshold).
The Act provides a remedial regime that includes formal warnings by the Australian Communications and Media Authority, civil penalties, injunctions, ancillary orders (e.g. compensation to victim) and enforceable undertakings.

The Do Not Call Register Act 2006 (Cth) establishes a national register that enables citizens to enter their phone number so that they do not receive unsolicited phone calls or faxes from marketers.
Part 3 of the Act outlines the features of the Do Not Call Register, including the registration process, administration of the register, access to the register and the application of the Privacy Act 1988 (Cth).
Parts 4 and 5 of the Act contain the remedial regime for contraventions, which includes civil penalties, compensation, recovering any financial benefits and injunctions.

The Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law regulate advertising, misleading and deceptive conduct, pricing regulation and anti-competitive conduct. These provisions may apply to organisations engaged in unsolicited electronic communications and/or telemarketing.

Under Part 6 of the Telecommunications Act 1997 (Cth), two industry codes have been created since the introduction of the Spam Act 2003 (Cth):
- Australian eMarketing Code of Practice
- Internet Industry Code of Practice - Internet and Mobile Content
Parts 26, 27 and 31A of the Act regulate investigations, information-gathering powers and enforceable undertakings - all of which may apply to telemarketers.
See Telecommunications (Telemarketing and Research Calls) Industry Standard 2011
See Fax Marketing Industry Standard 2011

Do Not Call Register
Regulation of Unsolicited Communications, Australian National Audit Office (14 July 2015)
Memorandum of Understanding between the Australian Cyber Security Center and the Australian Communications and Media Authority