12BUnsolicited marketing faxes must not be sent to a number registered on the Do Not Call Register

#### 12B Unsolicited marketing faxes must not be sent to a number registered on the Do Not Call Register (1) A person must not send, or cause to be sent, a marketing fax to an Australian number if: (a) the number is registered on the Do Not Call Register; and (b) the fax is not a designated marketing fax. > Note: For designated marketing fax, see Schedule 1A. (2) Subsection (1) does not apply if: (a) the relevant account‑holder; or (b) a nominee of the relevant account‑holder; consented to the sending of the fax. > Note 1: For the meaning of consent, see Schedule 2. > Note 2: For the meaning of nominee, see section 39. (3) Subsection (1) does not apply if: (a) the number was included on a list that was submitted by the person under subsection 19(1); and (b) during the 30‑day period ending at the end of the day on which the fax was sent: (i) the person received information under paragraph 19(2)(d) in response to the submission of the list, but that information did not state that the number was registered on the Do Not Call Register; or (ii) the person was informed under paragraph 19(2)(e), in response to the submission of the list, that the number was not registered on the Do Not Call Register; or (iii) under paragraph 19(2)(f), in response to the submission of the list, the person was given a list that included the number. For the purposes of this subsection, a list may consist of a single Australian number. > Note: Section 19 deals with access to the Do Not Call Register. (5) Subsection (1) does not apply if the person sent the fax, or caused the fax to be sent, by mistake. (6) Subsection (1) does not apply if the person took reasonable precautions, and exercised due diligence, to avoid the contravention. (7) A person who wishes to rely on subsection (2), (3), (5) or (6) bears an evidential burden in relation to that matter. Ancillary contraventions (8) A person must not: (a) aid, abet, counsel or procure a contravention of subsection (1); or (b) induce, whether by threats or promises or otherwise, a contravention of subsection (1); or (c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or (d) conspire with others to effect a contravention of subsection (1). Civil penalty provisions (9) Subsections (1) and (8) are civil penalty provisions. > Note: Part 4 provides for pecuniary penalties for breaches of civil penalty provisions. Extended meaning of cause (10) For the purposes of this section, if: (a) a person (the first person) enters into a contract or arrangement, or arrives at an understanding, with another person; and (c) the other person, or an employee or agent of the other person, gives effect to the contract, arrangement or understanding by sending a marketing fax; the first person is taken to have caused the marketing fax to be sent. (11) Paragraph (10)(a) applies to contracts or arrangements entered into, or understandings arrived at, before, at or after the commencement of this section.