Australian Spam Laws

Last Updated: 7 Feb 2006

"[T]he right to be let alone - the most comprehensive of rights and the right most valued by civilized men."

-  Justice Louis Brandeis, Olmstead v. U.S., 277 U.S. 438 (1928)

The Australian Spam Act 2003 and the Spam (Consequential Amendments) Act 2003 became operative on 11 April 2004. This page provides information about the spam laws and their passage through the Parliament in late 2003.

In December 2005, the government announced a review of the Spam Act 2003 and called for public submissions.

Contents:

• The Spam Acts
• The Regulator - Australian Communications & Media Authority ("ACMA")
• 2006
  • Review of the Spam Act 2003
• 2003
  • EFA Analyses and Commentary on the Spam Bills 2003
  • Background to the Spam Acts
    • Inquiry into the Spam Bills 2003
    • Passage of the Bills through Parliament

The Spam Acts

• Spam Act 2003
  • Text of Spam Act 2003
  • Explanatory Memorandum

• Spam (Consequential Amendments) Act 2003
  • Text of Spam (Consequential Amendments) Act 2003
  • Explanatory Memorandum

The Regulator - Australian Communications & Media Authority ("ACA")

The ACMA is responsible for enforcing the Spam Act and provides information about the laws for consumers and businesses on their web site, see:

• Spam - Information for consumers and businesses
• Spam – Reporting, Complaints and Enquiries

2006

Review of the Spam Act 2003

On 13 December 2005, the Minister for Communications, Information Technology and the Arts, Helen Coonan, announced a review of the Spam Act 2003 and called for public submissions on the operation of the Act by 1 February 2006. The Department of Communications, Information Technology and the Arts issued a Spam Act 2003 Review Issues Paper for comment.

EFA submission to the Review of the Spam Act 2003, 1 February 2006.

Brief summary: EFA considers the effectiveness of the Spam Act 2003 in reducing receipt of spam from Australian businesses is questionable. While some types of spam have been outlawed and reduced, other types have been legalised and have increased. In addition, the investigatory power provisions are excessive, unnecessarily open to misuse and should be amended. These provisions are, without justification, inconsistent with other Commonwealth legislation and/or the Guide To Framing Commonwealth Offences, Civil Penalties And Enforcement Powers. For more information, see EFA's submission to the Review.

2003

EFA Analyses and Commentary on the Spam Bills 2003

Note: Although the following analysis and commentary refers to the Bills as introduced in Parliament in September 2003, no changes were made during passage through Parliament. Hence the below is also applicable to the laws which commenced operation on 11 April 2004.

EFA submission to the Inquiry into the Spam Bills 2003, 20 October 2003.

Brief summary: EFA supports the general intent of the Spam Bill 2003 insofar as it is intended to reduce the quantity of unsolicited bulk commercial electronic messages. However, the possible benefit of the currently proposed laws in reducing spam is outweighed by its potential to result in unnecessary invasions of the privacy of innocent individual's homes and possessions and/or their imprisonment, prohibit single messages that are not generally regarded as spam and its authorisation of 'designated' spam. EFA considers the legislation should not have been enacted without amendments to resolve the issues and problems raised in EFA's submission.

EFA Overview and Analysis of the Spam Bills 2003, 3 October 2003.

Note: This initial analysis is superseded by EFA's submission to the Senate Committee which contained EFA's final recommendations on the Spam Bills.

Background to the Spam Acts

Inquiry into the Spam Bills 2003

On 8 October 2003, the Spam Bills were referred to the Senate Environment, Communications, Information Technology and the Arts Legislation Committee for inquiry and report by 27 October 2003.

• Inquiry Terms of Reference
• Public Submissions
• Hansard Transcript of Public Hearings, Canberra, 23 October 2003
  (Witnesses: NOIE, EFA, ACS, ADMA, CAUBE.AU).
• The Commmittee's Report and Recommendations, 29 October 2003.

Passage of the Bills through Parliament

• 18 September 2003: Bills introduced into House of Representatives.
• 8 October 2003: Bills referred to a Senate Committee for inquiry and report.
  
• 9 October 2003: Bills passed by the House of Representatives.
• 29 October 2003: Senate Committee inquiry completed and report issued.
• 25-28 November 2003: Bills debated and passed by the Senate with amendments.
  Both the Australian Democrats and the ALP moved various amendments which were passed by the Senate, e.g. to restrict the unnecessarily broad and privacy invasive search powers, require 'designated' (permitted) spam to to have a functional unsubscribe facility, etc. However, the government stated it would not support the amendments in the House, and the ALP made clear that when the Bills were returned to the Senate without the amendments, the ALP intended to capitulate to the Government and so the Bills would become law without the amendments. In other words, the ALP made plain that although they moved amendments they were not serious about protecting Internet users' civil liberties.
• 1 December 2003: Bills returned to the House for consideration of Senate amendments. Government parties rejected the amendments.
  
• 2 December 2003: Bills returned to the Senate and passed in their original form, i.e. without the amendments previously made by the Senate. The government coalition parties (Liberal and National), the ALP and three independents (Meg Lees, Brian Harradine and Len Harris) voted for the unamended Bills. The Democrats and the Greens commendably voted against the Bills because of their opposition to the overly broad search powers, etc. which the government and ALP refused to amend.
• 11 April 2004: The spam legislation become operative.

The legislation requires that a review of the operation of the spam laws be conducted before the end of two years after commencement.