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2019-2020-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
Unsolicited Political Communications Legislation Amendment Bill 2021
EXPLANATORY MEMORANDUM
and
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Circulated by authority of the Member for Mayo, Ms Rebekha Sharkie MP
Unsolicited Political Communications Legislation Amendment Bill 2021
OUTLINE
The Unsolicited Political Communications Legislation Amendment Bill 2021 (the Bill)
proposes to amend the Commonwealth Electoral Act 1918 (Electoral Act) and the Spam
Act 2003 (Spam Act).
The purpose of the Bill is to provide consumers with more control over the receiving of
unsolicited electronic and telephone communication from political parties by addressing
exemptions to laws that otherwise prohibit or limit telemarketing and spam communication.
In summary, the Bill amends:
- the Electoral Act to ensure actors used for the purposes of a political telephone
campaign are identified as such at the beginning of the voice call.
- the Spam Act to require political parties to provide an unsubscribe function for all
unsolicited electronic communication, including SMS, containing electoral content
that aims to influence the way electors vote in a federal election.
Background to measures in the Bill
The measures in the Bill stem from concerns raised by individuals in relation to the
volume, frequency or desirability of unsolicited communications from political parties which
are currently not subject to the restrictions imposed through the Spam Act.
The concerns of individuals relate to not only the intrusiveness of unsolicited
communication, but also the use of personal data without express consent, and the lack of
a remedy to stop or avoid this type of unsolicited communication.
With regards to electoral communication, the measures in the bill seek to strike a balance
between the rights of consumers to act on their choices and the freedom of political
parties, independents and candidates to communicate with voters.
The Spam Act prohibits unsolicited commercial electronic messages, broadly defined
under section 5 of the Act as messages sent via email, instant messaging, SMS and MMS.
However, the Act provides an exemption for designated commercial electronic messages.
These are defined in Schedule 1 of the Spam Act as electronic messages sent by
government bodies, political parties, charities and educational institutions. Schedule 1 also
outlines the types of factual content that must be included in these messages.
Unlike other commercial messages sent electronically, designated commercial electronic
messages are not required to include a functional unsubscribe facility.
This means that there is no avenue for voters to avoid unwanted unsolicited texts from
political parties, independents and candidates, and this has prompted more than 4,000
complaints to Australian Communications and Media Authority (ACMA) in 2021. However,
ACMA is powerless to act on these complaints.
The bill would require all electronic messages containing electoral matter, as defined in
section 4AA of the Electoral Act, to contain an unsubscribe facility. This is regardless of
whether the communication is for a commercial purpose as defined in the Spam Act.
Voters may view unsolicited texts from a political party or candidate as an invasion of
privacy, spam, or generally unwelcome. Providing for an unsubscribe function would give
voters some control over unsolicited and unwanted electronic communication, and may
assist ACMA, without interfering with the implied freedom of political communication
protected by the Constitution.
This Bill will also require actors in voice calls featuring electoral material to be identified, to
make it clear to those listening that the actors are performing a part (for instance, posing
as a nurse, teacher, small business owner, etcetera) and are not to be mistaken for 'real'
people.
FINANCIAL IMPACT
The bill will have no financial impact.
NOTES ON CLAUSES
Clause 1: Short Title
1. This clause is a formal provision and specifies the short title of the Bill as the
Unsolicited Political Communications Legislation Amendment Act 2021.
Clause 2:
2. This clause provides for the commencement of the Act on the 28th day after it
receives Royal Assent.
Schedule 1 - Amendments
Amends the Commonwealth Electoral Act 1918
Item 1
Requires actors, performing as a person in a particular occupation or in certain
circumstances, to be identified as an actor.
Schedule 1 - Amendments continued
Amends the Spam Act 2003
Item 2-14
Adds "political electronic messages" or "political" with affect to capture communications
from political parties in clauses that currently refer only to commercial email and other
types of commercial electronic messages.
Item 15
Requires individuals or organisations sending a political message to include an
"unsubscribe message" providing recipients with a opt out option.
Item 16-27
Adds "political electronic messages" with affect to capture communications from political
parties in clauses that currently refer only to commercial email and other types of
commercial electronic messages.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Unsolicited Political Communications Legislation Amendment Bill 2021
This bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the bill
The purpose of the Bill is to provide consumers with more control over the receiving of
unsolicited electronic and telephone communication from political parties by addressing
exemptions to laws that otherwise prohibit or limit telemarketing and spam communication.
Human rights implications
This Bill does not engage any of the applicable human rights and freedoms.
The measures contained in the Bill regulate the manner in which organisations conduct
unsolicited voice and electronic communication to individuals.
The Bill does not prohibit the provision of information but rather provides consumers with a
choice as to what information they receive and from whom.
Conclusion
This Bill is compatible with human rights and freedoms as it does not engage any of the
applicable human rights, or otherwise andy human rights issues.
Rebekha Sharkie MP