The Do Not Call Register: What Australian Businesses Need to Know

What is the Do Not Call Register?

The DNCR is a national database managed by the Australian Communications and Media Authority (ACMA). It contains landline, mobile, and fax numbers of individuals and businesses that have registered their wish not to receive unsolicited telemarketing calls or marketing faxes. The purpose of the DNCR is to provide Australians with a mechanism to reduce unwanted interruptions and to regulate the telemarketing industry.

The legal framework for the DNCR is primarily established by the Do Not Call Register Act 2006 (Cth) (the Act) and the Do Not Call Register Regulations 2017 (Cth). While the Act focuses on calls and faxes, it is important to remember that general unsolicited commercial electronic messages (emails and SMS) are covered by the separate Spam Act 2003 (Cth).

Who Must Comply?

The Act applies to any person or organisation that makes telemarketing calls or sends marketing faxes to numbers on the DNCR. This includes businesses directly performing their own telemarketing and those engaging third-party call centres or agencies. If a third party is engaged, both the business on whose behalf the communication is made (the "sender") and the third-party agency (the "telemarketer") have compliance obligations.

Key Obligations for Businesses

1. Register and "Wash" Your Calling Lists

Before making any telemarketing calls or sending marketing faxes, businesses must:

• Subscribe to the DNCR washing service: The ACMA provides a service that allows businesses to check their calling lists against the DNCR. This is an essential first step.
• "Wash" your calling lists: All numbers on your telemarketing call or fax lists must be submitted to the DNCR washing service to identify and remove any registered numbers.

It is a breach of the Act to make a telemarketing call or send a marketing fax to a number that has been on the DNCR for at least 30 days at the time the communication is made. This "30-day" rule allows for administrative delays in the registration process. To ensure ongoing compliance, calling lists must be washed regularly – at least every 30 days is best practice, or immediately before each major campaign.

2. Obtain and Record Consent for Calls to Registered Numbers

Even if a number is on the DNCR, a telemarketing call or marketing fax can still be made if the individual or organisation has given their express consent to receive such communications. Critical points regarding consent include:

• Express Consent is Key: For DNCR-registered numbers, consent must be express. This means it must be a clear, unambiguous, and affirmative indication of the individual's or business's wishes. It can be written (e.g., ticking an opt-in box on a form, signing an agreement) or verbal (e.g., recorded phone conversation).
• No Inferred Consent for DNCR Numbers: Unlike some provisions of the Spam Act, inferred consent is generally not sufficient to override a DNCR registration. The Act specifies that if a number is on the DNCR, express consent is required.
• Specificity of Consent: Consent should be specific to the type of communication (telemarketing calls, marketing faxes) and the organisation making it. Broad consent for "marketing communications" may not always be enough, particularly if the individual's expectations are not met.
• Record Keeping: Businesses must be able to prove consent if challenged. This means robust record-keeping systems are essential. Records should include the date and time consent was obtained, the method used (e.g., website form, phone call), what was consented to, and who gave the consent. This is particularly important under section 12(3) of the Act.
• Withdrawing Consent: Individuals always have the right to withdraw their consent. Businesses must have clear, accessible mechanisms for individuals to opt out of future communications and must action such requests promptly.

3. Provide Caller Identification and Honour Opt-Out Requests

During any telemarketing call, businesses must:

• Identify Themselves: Clearly state the name of the organisation on whose behalf the call is being made at the beginning of the call.
• Provide Contact Details: Offer a free (or local call rate) means for the recipient to contact the business.
• Honour Opt-Out Requests: If a recipient requests not to receive further telemarketing calls, that request must be actioned immediately. Their number should be added to an internal "do not call" list and removed from future telemarketing campaigns. This obligation exists regardless of whether the number is already on the DNCR.

These requirements are outlined in the Telecommunications (Telemarketing and Research Calls) Industry Standard 2017 and the Fax Marketing Industry Standard 2011, which are legislative instruments made under the Act and enforced by the ACMA.

Exemptions

Certain types of calls and faxes are exempt from the DNCR rules. These include:

• Research calls: Calls made solely for conducting research, where no attempt is made to sell goods or services.
• Charity calls: Calls made by registered charities for fundraising purposes.
• Government body calls: Calls made by government bodies.
• Educational institution calls: Calls made by educational institutions to current or former students (or their parents/guardians).
• Political calls: Calls made for political purposes by political parties, members of parliament, or candidates.

Even for exempt calls, general principles of good conduct apply, and recipients should still be able to request not to be contacted again.

Penalties for Non-Compliance

The ACMA actively monitors compliance and takes enforcement action against breaches of the Act. Penalties can be severe and include:

• Infringement Notices: For less serious breaches, the ACMA can issue infringement notices with monetary penalties.
• Court-Enforceable Undertakings: Businesses may be required to enter into formal undertakings with the ACMA to implement specific compliance measures.
• Civil Penalties: For serious or repeated breaches, the ACMA can initiate court proceedings seeking civil penalties. These penalties can run into millions of dollars, calculated based on the number of contraventions and the maximum penalty per contravention (up to 10,000 penalty units per contravention for corporations, or up to 2,000 penalty units for individuals, where a penalty unit is currently $313 as of 1 July 2024).

The ACMA publishes details of its enforcement actions, which serve as a clear warning to non-compliant businesses. You can find more information about the ACMA's enforcement activities and the DNCR on their website: ACMA Do Not Call Register information.

Interaction with Other Legislation

Compliance with the Do Not Call Register Act does not absolve businesses of their obligations under other relevant laws, particularly:

• Spam Act 2003 (Cth): This Act regulates the sending of unsolicited commercial electronic messages (emails, SMS, instant messages). It has similar requirements for consent, identification, and opt-out mechanisms.
• Privacy Act 1988 (Cth): The Australian Privacy Principles (APPs) apply to how businesses collect, use, and disclose personal information, which includes phone numbers. Any telemarketing activities must comply with the APPs, particularly regarding notification of collection, purpose of collection, and security of personal information. The Office of the Australian Information Commissioner (OAIC) provides guidance on privacy obligations: OAIC Australian Privacy Principles.
• Competition and Consumer Act 2010 (Cth) (ACL): The Australian Consumer Law (ACL), found in Schedule 2 of the CCA, prohibits misleading and deceptive conduct, unconscionable conduct, and undue harassment or coercion in consumer dealings, which would extend to telemarketing practices. The ACCC provides guidance on consumer protection laws: ACCC Consumer Rights and Guarantees.

Businesses must ensure their outbound marketing strategies are holistic, considering all relevant regulatory requirements. Engaging a third-party telemarketing agency requires carefully drafted service agreements that clearly allocate responsibilities and ensure compliance with all applicable laws.

Conclusion

Adhering to the Do Not Call Register requirements is not merely a legal formality; it is a fundamental aspect of ethical and sustainable business practice. Non-compliance risks significant financial penalties, reputational damage, and loss of consumer trust. Proactive management of calling lists, robust consent processes, and clear internal policies are crucial.

Envision Legal advises businesses on Do Not Call, Spam Act, Privacy Act, and Australian Consumer Law compliance for outbound marketing programs, helping to mitigate legal risks and protect your brand.

This article contains general information only and does not constitute legal advice. Envision Legal accepts no liability for any loss arising from reliance on this content. You should seek independent legal advice tailored to your specific circumstances. For enquiries, contact Envision Legal.