DNCR: enforcement outcomes | ACMA

DNCR: enforcement outcomes

Financial penalties for breaches of the legislation have recently increased

Under most Commonwealth laws, financial penalties are expressed in terms of ‘penalty units’ instead of dollar figures. As an example, a maximum fine would generally be expressed as ’10 penalty units’ as opposed to ‘$1000’. The Australian Government recently increased the value of penalty units that apply to breaches of most Australian Government laws.

The value of a penalty unit for calculating financial penalties is $210. The civil penalties that apply for contraventions of the Do Not Call Register Act 2006 are calculated using penalty units. This means that all financial penalties calculated using penalty units under the Do Not Call Register Act 2006 will be higher for breaches of the legislation that occur on or after 31 July 2015.

 

If the Australian Communications and Media Authority (the ACMA) carries out an investigation and makes a finding that a person has breached the Do Not Call Register Act 2006 (the DNCR Act), the Telecommunications (Telemarketing and Research Industry Calls) Standard 2017, or the Fax Marketing Industry Standard 2011 it has the following enforcement options available.

Formal warning

The ACMA may issue formal warnings for breaches of the DNCR (under section 40 of the DNCR Act) or section 129 of the Telecommunications Act 1997 (Telecommunications Act) for breaches of one of the abovementioned industry standards. All formal warnings that have been issued for breaches of the Do Not Call legislation since 1 June 2011 can be viewed below.

Enforceable undertakings

The ACMA can accept a formal undertaking (under section 572B of the Telecommunications Act) from a person to engage in, or refrain from, certain activities. Enforceable undertakings are enforceable by the Federal Court and can be accepted at any time, including during or following an investigation of a breach of the Do Not Call legislation.

Infringement notice

Infringement notices provide the ACMA with an alternative to the institution of proceedings in the Federal Court or Federal Magistrates Court. The ACMA can give an infringement notice under Schedule 3 to the DNCR Act, where a person has committed one or more breaches of the DNCR Act. An infringement notice must be given within 12 months of the day on which the breaches are alleged to have occurred.

Prosecution in the Federal Court or Federal Magistrates Court

The ACMA may apply to the Federal Court or Federal Magistrates Court for an order for a person to pay to the Commonwealth a pecuniary penalty if the court is satisfied that a person has contravened a civil penalty provision. This option is available to the ACMA where a person has either failed to comply with an infringement notice issued by the ACMA or where the alleged breaches otherwise warrant court proceedings.

Enforcement outcomes

The Do Not Call Register enforcement outcomes are listed below.

2016

Court action

  • Getaway Escapes Pty Ltd – On 10 June the Federal Court ordered Getaway Escapes to pay penalties of $150,000 for 5,293 telemarketing calls made to numbers on the Do Not Call Register, and a further $150,000 for making telemarketing calls between July 2013 and 18 March 2014 without displaying the number of the caller, in breach of the Industry Standard.
  • Jo Day (Director Getaway Escapes Pty Ltd) - On 10 June the Federal Court found Ms Day was knowingly concerned in or a party to Getaway Escapes contraventions and ordered her to pay penalties of $12,500 for the Do Not Call breaches and $12,500 for the Industry Standard breaches (see related media release). 

Infringement notices

Formal warnings

2015

Formal warnings

2014

Infringement notices

Formal warnings

2013

Enforceable undertakings accepted by the ACMA

Formal warnings

2012

Enforceable undertakings accepted by the ACMA

  • Service Stream Solutions Pty Ltd—Dec
  • Lee Berenger (trading as Sydney Leisure Guide)—Oct

    This note confirms that on 10 January 2014, the Australian Communications and Media Authority confirmed a variation to the Lee Berenger (trading as Sydney Leisure Guide) enforceable undertaking accepted on 28 September 2012.

    Pursuant to section 572B(3) of the Telecommunications Act 1997, the variation replaces clause 3.1(a) of the undertaking with: "Should he recommence trade as a sole trader, Lee Berenger undertakes to notify the ACMA of this fact immediately, and to complete the Association for Data-Driven Marketing and Advertising ‘Privacy and Marketing Compliance’ online course at the first available opportunity. Lee Berenger undertakes to provide the ACMA, within 14 days of completion, a letter signed by the course co-ordinator confirming his completion of the course."

  • Indoz Worldwide Pty Ltd trading as Vacation4you—Mar
  • Vodafone Hutchison Australia Pty Ltd—Jan

Formal warnings

Infringement notices

2011

Enforceable undertakings accepted by the ACMA

Formal warnings

Infringement notices

Court action

2010

Enforceable undertakings accepted by the ACMA

Formal warnings

  • The ACMA has issued three formal warnings to entities in 2010 that were found to have contravened the Do Not Call Register Act 2006.

Infringement notices

  • Bruce Harry Real Estate for $6,600 (related media release: Bruce Harry Real Estate pays the price for illegal telemarketing)

2009

Enforceable undertakings accepted by the ACMA

Formal warnings

  • The ACMA has issued eight formal warnings to entities in 2009 that were found to have contravened the Do Not Call Register Act 2006.

Infringement notices

  • Neighbourhood Energy for $22,000 (related media release: Neighbourhood Energy penalised for calls made to numbers on the Do Not Call Register)
  • Telstra for $101,200 (related media release: Telstra pays $101,200 infringement notice for telemarketing to 'Do Not Call' numbers)
  • 24x7 Direct for $8,800 (related media release: 24x7 Direct first call centre penalised for ringing numbers on the Do Not Call Register)

2008

Enforceable undertakings accepted by the ACMA

Formal warnings

  • The ACMA has issued four formal warnings to entities in 2008 that were found to have contravened the Do Not Call Register Act 2006.

Infringement notices

  • Dodo Australia for $147,400  

Last updated: 22 August 2017