Ian Campbell (WA, Liberal Party, Minister for the Environment and Heritage) Share this | Link to this | Hansard source

I table a supplementary explanatory memorandum related to the government amendment to be moved to these bills. The memorandum was circulated on 19 June.

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

by leave—I move opposition amendments (1) and (2) on sheet 4988:

(1)    Clause 4, page 7 (after line 21), after the definition of services insert:

small business means a business which employs fewer than 20 people;

(2)    Clause 14, page 15 (after line 26), at the end of the clause, add:

; and (d) it is used or maintained exclusively or primarily by a small business.

Essentially, the amendments seek to include the option for small businesses to opt out of receiving telemarketing calls. The fact is that small businesses are just as much victims of aggressive telemarketing as ordinary Australian families. We on the opposition side consider that the government’s decision to exclude small businesses from the scope of the bill is a major deficiency. Clearly, the government appears not to be listening to what small business wants.

The opposition has consulted with COSBOA, the Council of Small Business Organisations of Australia, in relation to this amendment. I understand that small business is firmly supporting the opposition’s proposal. Minister Coonan is not here but, in summing up in the second reading debate, she put what I have to confess I found to be a rather confused response to this issue. She said that they wanted to not exclude business-to-business transactions but that that was not possible under the legislation. Let us be very clear about this: including small business in the amendment Labor has proposed is simply allowing small business to opt out. It gives small business the chance to opt out. It is not saying to them, ‘You have to not get these calls’; it is saying that, if you are a small business operator and you want to opt out of receiving telemarketing calls, you can do so. Small businesses who want to continue to receive them obviously can.

We do not see any sensible policy basis for the government excluding small business from the protection against unwanted harassment through telemarketing. I make the point that there are a great many tradespeople in this country whose business contact is often also their personal phone—a tradesperson carrying a mobile phone when their mobile is obviously their business and personal phone. What will happen to them? Are they not given the option to opt out because they are technically a small business? I also want to consider somebody who is a hairdresser or a beauty therapist who has a small business. Obviously when you have an appointment the last thing you want is for it to be interrupted by somebody flogging a product to you over the phone.

Frankly, the advantages for small business significantly outweigh the disadvantages. In my speech during the second reading debate I quoted Tony Steven, the head of COSBOA, who 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.’ I find it rather extraordinary that the government is refusing to listen to the interests of small business in relation to this matter. It seems to us perfectly sensible that small business ought to have the opportunity to opt in to a regime which protects them from telemarketing.

The evidence from COSBOA indicates that that is an appropriate way to go. The government’s defence appears to be that there is business-to-business marketing. As I said, that is obviously an issue for the small business owner to consider. What we are talking about here is mass telemarketing, often from call centres offshore, and not sensible commercial contact between business associates or potential associates. I commend the amendment to the Senate.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

The Australian Democrats will be supporting the amendments before the chair.

Question negatived.

Ian Campbell (WA, Liberal Party, Minister for the Environment and Heritage) Share this | Link to this | Hansard source

I move government amendment (1):

(1)    Clause 39, page 31 (line 13), omit subclause (2), substitute:

        (2)    A nomination, or a withdrawal of a nomination, must be in writing.

I am substituting for Minister Coonan. The proposed amendment implements the Senate committee’s recommendation that consent for a person to act as a nominee can only be provided in writing. The effect of the proposed amendment will be that the relevant account holder must nominate a person in writing before that person can either apply to have a number listed on the register or consent to receive a telemarketing call on a number that is on the register.

Question agreed to.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

Family First opposes schedule 1 in the following terms:

(1)    Schedule 1, clause 3, page 34 (line 23) to page 36 (line 25), TO BE OPPOSED.

This is all about ensuring political parties and politicians are not exempt from the Do Not Call Register when someone puts their name down on the register. I think this is quite clearly something that would be in the interests of Australians and families that want to make sure their homes are free from nuisance calls.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

Obviously the Australian Democrats will be supporting the amendment before the chair. We have the same amendment, in line with our longstanding practice of not supporting exemptions under privacy law generally, and the Privacy Act specifically. For legislation such as the Do Not Call Register Bill, when it comes to the issue of exempting political acts and practices—in this case members of parliament and Independent members of parliament, so people from parties and candidates—we think that is an inappropriate exemption.

The reason I say that is not simply on the basis of so-called nuisance calls. I am not necessarily arguing that politicians are going to be violators of family or other time by making nuisance calls. Having said that, there are a number of Australians who maybe got a bit of a shock in the 2004 federal election when they returned home to get a message from the Prime Minister on their answering machines—although that might work for some people. So I guess this gets to the gist of the matter: I want to know whether Australians are going to be given the opportunity to select, on a register, politicians in the same way that this legislation is giving them the opportunity to say that they do not want to receive calls from a variety of other institutions, organisations and businesses. This is an issue of whether or not we have a double standard operating for politicians.

Also, the last thing I want to do is to be seen to be in any way curtailing the freedom of speech, freedom of political expression or freedom of opportunity of political parties, candidates and politicians such as ourselves to canvass, lobby for or advocate a particular position when it comes to the electorate. There may be people out there who are not necessarily keen to have unsolicited—we are talking unsolicited—phone contact from a particular organisation, or indeed politician. That does not mean that as politicians our opportunities and avenues for contact with electors are curtailed in a way that means we cannot actually have any contact. We have direct mailing and a range of other opportunities through which we can lobby for or canvass votes, so this is not about denying political freedom.

I also want to point out that the Democrats’ position on this is consistent in an historical sense—and Temporary Chair Brandis, you and others would be aware of amendments we have moved previously. Indeed, the private member’s bill that I finally introduced today—I have been threatening to introduce it for a long time—actually seeks to remove the broad-ranging exemption for political acts and practices from the Privacy Act. So it is a consistent position in a historical sense. Let us face it: we have been on about this for a while.

However, it is also consistent—and we are aiming for logical consistency here—in that my concern is with exemptions generally. It is not because I do not think that there are particularly worthy organisations such as the ones that have been nominated in this bill, arguably in an arbitrary way, that are exempt from this legislation—be they religious, charitable, educational, government agencies and departments and, of course, politicians, Independent candidates et cetera. I have a problem with exemptions to these kinds of laws. I am not suggesting that there are not occasions when there may be an exception to the rule. But my basic belief in terms of privacy law or a specific piece of legislation such as the Do No Call Register Bill is that, when there are opportunities and when you have the capability to make a register as sophisticated as it can be, you do not need exemptions.

I know this is the line of the Australian Privacy Foundation, and it is not unusual that I would have a similar position. But, if there is an opportunity to make the register as impressive, sophisticated, tight as it can be, you do not necessarily need these exemptions in law. Let us face it: these are broad-ranging exemptions. When you look at the list of exemptions that apply with this legislation, it is broad ranging.

I want to make it very clear that this is not just about politicians, although the importance of this amendment, which does obviously deal specifically with politicians, is to set a standard and not a double standard. It is to make it clear that as politicians we do not accept and we do not expect special privileges. But, when it comes to other exemptions too, it is not good enough to say, ‘I don’t want politicians to be included but it’s okay for religious organisations or educational institutions.’ We all have different arguments that we could use in our favour. So the best thing is, surely, to create a very fair and equal law—a very equal piece of legislation.

It may be that the government’s advisers will suggest: ‘We’re not quite at the stage where the register is as sophisticated as it can be. We need some time to develop this.’ Then I would like the government to perhaps give us an undertaking—and I will accept an undertaking—that says: ‘These are early days. We’re just looking at how this register will work and develop. We will consider removing some of these exemptions as time goes on.’ I will take that for now, but I would like to see an expressed position on behalf of all political parties here today that says that giving politicians an exemption is not good enough.

I think politicians are now among the worst violators of personal privacy in this land. It is not because I do not expect us to be able to collect data or information about our constituents. It is not that we do not keep files or that we are not going to tag certain people as maybe voting in a certain way or having a particular political leaning or direction. That is okay, provided that the national privacy principles in the legislation apply to that, so that very basic aspects of privacy law or theory pertain to that collection of information—that is, that we or our constituents and our citizens can access that information and can correct it if it is wrong.

I am not suggesting a curtailment of the practices that many of us practise or abide by. Certainly the major political parties are responsible for collecting a great amount of data. But I want to ensure that Australians have the chance to respond, to scrutinise and to correct information that is stored about them. I honestly think that, if we create laws that businesses, organisations and other people in the community have to adhere to, why the hell don’t we adhere to them too? That is the double standard. We should be similarly adhering to privacy law, especially when we expect other organisations in the country to do so. I do not think that the Do Not Call Register Bill really allows for politicians to be the exception to the rule. That exemption is particularly an affront to me.

But a logically consistent position would also suggest that any exemptions to a register of this nature have to have pretty convincing arguments and there have to be pretty exceptional circumstances. Given the wide-ranging exemptions contained in this legislation, as many people have pointed out—the Australian Law Reform Commission has made it clear too—Australian customers, consumers, citizens or whatever are still going to be subject to a large number of unwarranted and unsolicited phone calls at home as a consequence. So I urge the government to tighten up this register and minimise the exemptions. I know it is not going to happen today, but I urge you to consider at least removing this one because, even in terms of perception, it is a bad look for politicians, Independent members of parliament and registered political parties to be exempt from this particular piece of legislation.

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

I understand the government are opposing this amendment. The opposition also do not support the amendment. I do understand the concerns raised by Senator Stott Despoja. There are a number of reasons why we do not support it. One reason is that we have advice that there may well be some legal problems in terms of the potential prohibition of elected representatives from contacting constituents. This may well be found to be unconstitutional, given the High Court’s decisions which look to the implied right to political communication.

Also, there is obviously in any legislation the need to consider the various public interest objectives. In our view, there is a significant offsetting public benefit associated with politicians being permitted to contact their constituents for non-telemarketing related reasons.

Ian Campbell (WA, Liberal Party, Minister for the Environment and Heritage) Share this | Link to this | Hansard source

We are indeed opposing the amendment. I think that Senator Wong makes the case most eloquently. The Democrats do in fact have form on this. They are indeed consistent, as Senator Stott Despoja said. I recall when former Senator Bolkus was, I think, Special Minister of State some years ago and tried to bring in a law to ban political advertising. The Democrats, with the exception of Senator Sowada, supported it, as I recall.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

Senator Stott Despoja interjecting—

Ian Campbell (WA, Liberal Party, Minister for the Environment and Heritage) Share this | Link to this | Hansard source

I am sorry. The Democrats in the Senate, with the exception of Senator Sowada—to her great credit—voted with the then Labor government to ban political advertising. The then Liberal opposition suggested that that would be regarded as a very strong curtailment of political communication and free speech, and we were successful in stopping that. Senator Stott Despoja says that we should write to constituents and communicate with them in other ways. But I am quite sure that, in the last week of a federal election campaign when the letterboxes of Australia threaten to burst, if you did a survey of voters and asked, ‘Would you rather ban political direct mail or ban political phone calls?’ everyone would say, ‘Ban the direct mail and we will put up with the phone calls.’

I think it is incredibly important that we draw attention to the objects of the legislation that Senator Coonan has brought here—a legislative act to control calls that can become a nuisance. It is a proposal that has been around for a while. I think that it is to her credit that she has finetuned it to the extent that it has bipartisan support—

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

She’s adopting Labor’s policy.

Ian Campbell (WA, Liberal Party, Minister for the Environment and Heritage) Share this | Link to this | Hansard source

As I said, it has been around for a while. This is a good thing. We do, in fact, agree on most things in this place. It is only the things that we do not agree on that get the newspaper and media coverage. It is a good proposal that Senator Coonan has brought forward, and it is very important that, in one of the greatest democracies in the world, we are able to communicate with our constituents using all forms of technology. It is incredibly important to have that level of availability. The reality is: if politicians abuse that direct communication by making phone calls that become harassing and a nuisance, then there is a consequence and that is that people do not vote for us.

I know that the calls that our party made at the last election were controversial, but the risk that you take when you use a new technique like that is that you get a backlash. That is always a risk, and I think it is quite self-enforcing. If you ring up as a politician and lobby someone, and you have upset their dinner, or you have upset their evening, or you have upset them because you have called them in the first place, then the risk is that you lose their vote. I think it is self-enforcing, and there is a substantial difference between phone calling for commercial activities and phone calling for the public interest, which is the context in which I put political phone calling—as well as phone calling by charity groups that seek to raise money for good causes. We will be opposing this amendment.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

I have heard the discussions from both major parties on this issue. I think that if someone is going to go to the effort of putting their name on a Do Not Call Register, it is ludicrous that politicians should be treated as special in that. I heard in the second reading debate that it is okay for politicians to call for donations. I just think that if someone goes to all the effort of putting themselves on the Do Not Call Register, then having special treatment for politicians is really stretching the imagination way too far.

With respect to the constitutional issues that were raised, I would be more than happy to get a copy of your legal advice, or perhaps you could table the legal advice on that issue, I would be very interested to see it. I think it is questionable to say the least. I will leave it at that. I am hoping to have support on this motion to not exempt politicians and political parties from the Do Not Call Register.

George Brandis (Queensland, Liberal Party) Share this | Link to this | Hansard source

The question is that schedule 1, clause 3 stand as printed.

Question agreed to.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

by leave—I would like to have Family First’s opposition to the exemption noted.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

by leave—While I think it is obvious, I will do the same as Senator Fielding and just register the Democrats’ opposition, but I will not call for a division.

Bills agreed to.

Do Not Call Register Bill 2006 reported with an amendment and Do Not Call (Consequential Amendments) Bill 2006 reported without amendment; report adopted.