Australia Spam Act 2003

Act No. 129 of 2003 as amended

This compilation was prepared on 1 July 2005
taking into account amendments up to Act No. 45 of 2005

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

Prepared by the Office of Legislative Drafting and Publishing,
Attorney-General’s Department, Canberra

An Act about spam, and for related purposesPart 1-Introduction

1 Short title

This Act may be cited as the Spam Act 2003.

2 Commencement

(1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

(2)  Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3 Simplified outline

The following is a simplified outline of this Act:

• This Act sets up a scheme for regulating commercial e?mail and other types of commercial electronic messages.
• Unsolicited commercial electronic messages must not be sent.
• Commercial electronic messages must include information about the individual or organisation who authorised the sending of the message.
• Commercial electronic messages must contain a functional unsubscribe facility.
• Address?harvesting software must not be supplied, acquired or used.
• An electronic address list produced using address?harvesting software must not be supplied, acquired or used.
• The main remedies for breaches of this Act are civil penalties and injunctions.

Note: The Telecommunications Act 1997 contains additional provisions about commercial electronic messages. Those provisions include Part 6 (industry codes and standards), Part 26 (investigations), Part 27 (information?gathering powers) and Part 28 (enforcement).

4 Definitions

In this Act, unless the contrary intention appears:

account includes:

(a)  a free account; and

(b)  a pre?paid account; and

(c)  anything that may reasonably be regarded as the equivalent of an account.

ACMA means the Australian Communications and Media Authority.

acquire, when used in relation to goods or services, has the same meaning as in the Trade Practices Act 1974.

address?harvesting software means software that is specifically designed or marketed for use for:

(a)  searching the Internet for electronic addresses; and

(b)  collecting, compiling, capturing or otherwise harvesting those electronic addresses.

agency includes:

(a)  an armed force; and

(b)  a police force.

Australia, when used in a geographical sense, includes the external Territories.

Australian link has the meaning given by section 7.

authorise, when used in relation to the sending of an electronic message, has a meaning affected by section 8.

business includes a venture or concern in trade or commerce, whether or not conducted on a regular, repetitive or continuous basis.

carriage service has the same meaning as in the Telecommunications Act 1997.

civil penalty provision means any of the following provisions:

(a)  subsections 16(1), (6) and (9);

(b)  subsections 17(1) and (5);

(c)  subsections 18(1) and (6);

(d)  subsections 20(1) and (5);

(e)  subsections 21(1) and (3);

(f)  subsections 22(1) and (3);

(g)  a provision of the regulations that is declared to be a civil penalty provision in accordance with paragraph 45(2)(c).

commercial electronic message has the meaning given by section 6.

consent, when used in relation to the sending of an electronic message, has the meaning given by Schedule 2.

data processing device has the same meaning as in the Telecommunications Act 1997.

dealing with, when used in relation to a commercial electronic message, includes:

(a)  accessing the message; and

(b)  responding to the message; and

(c)  filtering the message.

designated commercial electronic message has the meaning given by Schedule 1.

director includes a member of the governing body of an organisation.

educational institution includes:

(a)  a pre?school; and

(b)  a school; and

(c)  a college; and

(d)  a university.

electronic message has the meaning given by section 5.

employee includes an individual who is in the service of an armed force, a police force or a religious organisation.

evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

Federal Court means the Federal Court of Australia.

goods has the same meaning as in the Trade Practices Act 1974.

government body means:

(a)  a department of the Commonwealth, a State or a Territory; or

(b)  an agency, authority or instrumentality of the Commonwealth, a State or a Territory; or

(c)  a department of the government of a foreign country; or

(d)  an agency, authority or instrumentality of the government of a foreign country; or

(e)  a department of the government of a part of a foreign country; or

(f)  an agency, authority or instrumentality of the government of a part of a foreign country.

harvested?address list means:

(a)  a list of electronic addresses; or

(b)  a collection of electronic addresses; or

(c)  a compilation of electronic addresses;

where the production of the list, collection or compilation is, to any extent, directly or indirectly attributable to the use of address?harvesting software.

international convention means:

(a)  a convention to which Australia is a party; or

(b)  an agreement between Australia and a foreign country.

Internet carriage service means a listed carriage service that enables end?users to access the Internet.

investment means any mode of application of money or other property for the purpose of gaining a return (whether by way of income, capital gain or any other form of return).

listed carriage service has the same meaning as in the Telecommunications Act 1997.

logo includes a trade mark.

message means information:

(a)  whether in the form of text; or

(b)  whether in the form of data; or

(c)  whether in the form of speech, music or other sounds; or

(d)  whether in the form of visual images (animated or otherwise); or

(e)  whether in any other form; or

(f)  whether in any combination of forms.

mistake means reasonable mistake of fact.

organisation includes:

(a)  a body corporate; and

(b)  a partnership; and

(c)  a government body; and

(d)  a court or tribunal; and

(e)  an unincorporated body or association.

Express references in this Act to organisations do not imply that references in this Act to persons do not include bodies politic or corporate.

Note:   Paragraph 22(1)(a) of the Acts Interpretation Act 1901 provides that person includes a body politic or corporate as well as an individual.

penalty unit has the meaning given by section 4AA of the Crimes Act 1914.

person includes a partnership.

publish includes:

(a)  publish on the Internet; and

(b)  publish to the public or a section of the public.

registered political party means a political party, or a branch or division of a political party, that is registered under:

(a)  the Commonwealth Electoral Act 1918; or

(b)  a law of a State or Territory that deals with electoral matters.

relevant electronic account?holder, in relation to the sending of an electronic message to an electronic address, means:

(a)  if the electronic address is an e?mail address-the individual or organisation who is responsible for the relevant e?mail account; or

(b)  if the message is sent to an electronic address in connection with an instant messaging service-the individual or organisation who is responsible for the relevant instant messaging account; or

(c)  if the electronic address is a telephone number-the individual or organisation who is responsible for the relevant telephone account; or

(d)  in any other case-the individual or organisation who is responsible for the relevant account.

send includes attempt to send.

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