Do Not Call Register Regulations 2017

The central concept is the “primary purpose” test. The Act defines a “telemarketing call” by reference to paragraphs 5(1)(e) to (o), which cover calls made with the purpose of offering to supply goods or services, promoting goods or services, soliciting donations, offering gifts or prizes, offering land or business opportunities, and so on. However, subsection 5(7) allows the Regulations to exclude calls that are not telemarketing calls even if they have a purpose that would otherwise fall within those paragraphs. The Regulations therefore create safe harbours. The primary purpose must be the dominant, main reason for the call. The examples in regulation 6 make clear that a call whose primary purpose is, say, informing of a product recall may also include offers of alternative goods without the call becoming a telemarketing call. The call remains exempt if the primary purpose is the exempt purpose, regardless of any incidental telemarketing.

The concept of “solicited calls” is broad: calls made in response to a customer order, request for goods or services, inquiry, or request for information, provided the call is made within a reasonable time and the customer has not withdrawn the request. This covers follow-up calls to confirm details, arrange delivery, respond to online inquiries, and follow up on in-person inquiries (e.g. at a shopping mall stall). The reasonable time element introduces a fact-based standard: calls many weeks after an inquiry may lose the solicited character.

The “deemed nominee” concept in regulation 7 is a gap-filler. Under the Act, a relevant account holder (the person who pays the bill for the telephone service) controls the registration of the number on the Register and can give consent to be called. If a third party (e.g. a friend, family member, employee) gives the account holder’s number to a business, that third party has no authority under the Act to consent to calls. The Regulations fix this by deeming that third party to be a nominee, solely for the purpose of giving consent to calls or faxes to contact them. The deemed nominee can consent to calls to the number even though they are not the account holder. This does not give the deemed nominee any power to apply for the number to be entered on the Register; that power remains with the account holder.

The exemptions for product recall calls, fault rectification calls, appointment rescheduling and reminder calls, and payment-related calls are all framed as operational exceptions. They recognise that businesses need to contact customers for legitimate service and administrative reasons, and that these contacts should not be subject to the same restrictions as unsolicited telemarketing. The Regulations draw a line: where the call is necessary or expected as part of an existing customer relationship, it is exempt. However, the “primary purpose” requirement means that a call cannot be disguised as a service call when its real goal is selling.

The Regulations directly affect any person or organisation that makes voice calls to Australian telephone numbers. That includes telemarketing companies, call centres, charities, political parties (though political calls are treated separately under the Act), businesses with customer service or outbound sales teams, utilities, banks, insurers, retailers, tradespeople, professional firms (e.g. dentists, hairdressers), and any entity that contacts customers by phone. The exemptions in regulation 6 are relevant to any business that conducts recall campaigns, rectifies faults, schedules appointments, follows up on payments, or responds to customer inquiries.

The deemed nominee provision in regulation 7 affects any organisation that collects telephone numbers from individuals who are not the account holder. Common examples: banks taking loan applications with a contact number that belongs to an employer or family member; retailers taking delivery contact numbers; health clubs obtaining numbers from prospective members at a stall; online inquiries where the person supplies a work number. For these organisations, the deemed nominee rule provides legal certainty: the individual giving the number can validly consent to calls to that number. Without it, the business might need to obtain separate consent from the account holder, a potentially cumbersome process.

Consumers are affected as recipients of calls. Those who have listed their number on the Do Not Call Register may still receive calls that fall within the exemptions. For example, a consumer who has a number on the Register can still be called by their electricity retailer to inform them of a fault, or by their car dealer about a recall. The exemptions also allow follow-up calls after a complaint or inquiry. Consumers who use another person’s number (e.g. a teenager using a parent’s landline) are able to give consent for calls to that number by virtue of being a deemed nominee.

The ACMA (Australian Communications and Media Authority) is the enforcement body. The Regulations define the scope of what the ACMA can regulate as telemarketing. If a call falls within an exemption, it is not a telemarketing call and cannot attract a penalty under the Act. Therefore, the Regulations constrain the ACMA’s enforcement domain. The ACMA must assess whether a challenged call has a primary purpose within an exemption.

The Regulations also affect legal advisers and compliance officers, who must advise clients on whether planned call campaigns are caught by the Act. The categories are detailed and fact-specific, increasing compliance analysis costs.

The Regulations do not impose duties directly; they are exemptions to duties imposed by the Act. However, they create implied duties on callers to be able to demonstrate that a call falls within an exemption. The primary duty under the Act is not to make telemarketing calls to a number listed on the Do Not Call Register, and not to make telemarketing calls to a number in respect of which the account holder has made an opt-out request under section 13 or 13A of the Act. The Regulations provide a defence: if the call is of a kind specified, it is not a telemarketing call, and therefore the prohibition does not apply.

The key right for organisations is the right to make calls for purposes that are not telemarketing. They do not need to check the Register before making a product recall call or an appointment reminder, because those calls are not telemarketing calls. In practice, many organisations still check the Register as a precaution, but the Regulations give them legal cover.

The deemed nominee provision creates a right for the person giving the number to consent on behalf of the account holder. The account holder’s right to control calls to their number is qualified: if a third party gives the number and the third party is deemed a nominee, the account holder cannot prevent the business from calling that number (unless the account holder themselves has registered the number on the Do Not Call Register). The account holder could still complain to the ACMA if they consider the calls excessive, but the consent from the deemed nominee is valid under the Regulations.

Consumers who receive calls that fall within an exemption have no right under the Act to demand those calls stop (other than by asking the caller to stop, or by the account holder registering the number). However, the primary purpose test means that if a call drifts into pure telemarketing, it loses the exemption. So a consumer’s de facto right is that the call must not have as its primary purpose a telemarketing objective.

The Regulations also impose a duty of accuracy: a caller who claims an exemption must have a genuine primary purpose. A call that is ostensibly about a product recall but is in reality a sales pitch would not be saved. The examples warn that incidental selling is permitted, but the dominant purpose must be the exempt purpose.

The Regulations themselves do not create penalty provisions. The penalties for making a telemarketing call in breach of the Act are set out in the Act. Under the Act, a person who makes a telemarketing call to a number on the Do Not Call Register, or to a number that has been the subject of an opt-out request, may face civil penalties. As of the last known amendments, the maximum civil penalty for an individual is significant (hundreds of thousands of dollars) and for a body corporate is much higher. In addition, infringement notices (penalty notices) can be issued by the ACMA.

The Regulations function as a defence or safe harbour. If a call falls within regulation 6, it is not a telemarketing call, so no penalty can be imposed under the Act for calling a registered number. However, the burden of proving that a call meets an exemption would fall on the caller if the ACMA investigates. The primary purpose test is subjective but must be objectively supported. The ACMA may examine call scripts, recordings, the pattern of calls, and the proportion of selling content to assess the primary purpose.

The deemed nominee provision in regulation 7 does not create penalties either. It creates a legal fiction that allows consent to be given. If a business relies on consent from a deemed nominee but the individual never actually provided the number, or the number was provided for a different purpose, the consent may be ineffective, and the business could be in breach. The enforcement risk lies in the underlying consent requirement of the Act.

The ACMA has enforcement powers including investigations, issuing formal warnings, infringement notices, and seeking civil penalties through the Federal Court. The ACMA may also accept enforceable undertakings. The Regulations narrow the grounds on which the ACMA can act, because certain calls are removed from the definition. In that sense, the Regulations reduce the enforcement scope.

There is no private right of action under the Act; only the ACMA can enforce. Individuals can complain to the ACMA about unwanted calls, and the ACMA will then determine whether the call was a telemarketing call under the Act, considering the Regulations. If the call falls within an exemption, the ACMA will likely not pursue enforcement.

The Regulations are made under the Do Not Call Register Act 2006, and their entire effect is to define terms and exceptions within that Act. They supplement the Act by filling in the delegated powers in subsection 5(7) and section 39(4). They do not override the Act; they sit within its framework.

The Regulations repeal the Do Not Call Register Regulations 2006. Any existing policies, guidelines or case law interpreting the old regulations may be relevant to the extent the provisions are identical. However, the 2017 Regulations are the current law. The examples in the Regulations are not exhaustive but illustrate the application; they may guide interpretation.

The Regulations interact with the Spam Act 2003 only indirectly: the Act covers voice calls and faxes, while the Spam Act covers email and other electronic messages. Regulation 7 also refers to faxes, so the deemed nominee provision applies to both calls and faxes. But the Regulations do not affect the Spam Act.

The Telecommunications Act 1997 and the Telecommunications (Telemarketing and Research Calls) Industry Standard 2017 (now superseded by other instruments) may also regulate call behaviour. The Do Not Call Register Act and the Regulations are separate from industry standards that govern how telemarketing calls must be conducted (e.g. calling times, caller ID, do-not-call requirements). Compliance with the Regulations does not guarantee compliance with industry standards; a call that is exempt from the Register may still have to comply with timing and identification requirements under other instruments.

The Privacy Act 1988 interacts to the extent that collecting consents from deemed nominees involves handling personal information. The deemed nominee provision does not override privacy obligations; the business must still have a lawful basis to collect and use the number.

State and territory laws on unsolicited consumer agreements (e.g. the Australian Consumer Law) may also apply to sales made during exempt calls. For instance, a product recall call that results in a sale of alternative goods may trigger cooling-off rights under the Australian Consumer Law. The Regulations do not affect those rights.

The Do Not Call Register Regulations 2017 were made on 9 March 2017 and commenced the day after registration, which was 17 March 2017 (regulation 2). They replaced the Do Not Call Register Regulations 2006, which were repealed by Schedule 1. The 2017 Regulations have not been amended at the time of this writing, according to the provided text. However, the text does not include any subsequent amendments; researchers should check the Federal Register of Legislation for any amending instruments made after 2017. The instrument as provided appears to be the original version.

The 2006 Regulations had been in force for over a decade. The 2017 version largely re-enacted the same exemptions but with updated drafting, additional examples, and the inclusion of a new explicit provision for calls not answered (regulation 6(8)). The 2006 Regulations did not contain that clarifying provision; the 2017 version makes clear that the primary purpose test applies even if the call is not answered. Also, the deemed nominee provision in regulation 7 was not present in the 2006 Regulations in the same form; the 2006 version had a similar provision but it was narrower. The 2017 version broadens it to cover cases where the individual gives the number to a person or organisation, and the consent can be given for calls and faxes, including calls arranged by the person or organisation to be made by others. This clarifies that consent flows through to third-party service providers.

Given the age of the instrument (over seven years as of this analysis), it is possible amendments have been made to increase civil penalties or adjust exemptions. The analysis here is based strictly on the text provided. Practitioners should verify the current version.

The source text does not cite any court cases, and there is no litigated case law presented. The Regulations themselves are not the subject of any reported decisions mentioned in the instrument. However, the operation of the primary purpose test and the deemed nominee provision may have been considered by the Administrative Appeals Tribunal or the Federal Court on appeal from ACMA decisions. Cases under the Act often turn on whether a call was a telemarketing call, which in turn depends on the Regulations. For example, in ACMA v. ... (hypothetical), callers have argued that calls were exempt under the solicited call provision. But without specific case law in the source, we cannot name any.

The fact that the Regulations have not been frequently litigated may indicate that the exemptions are relatively clear in practice, or that ACMA enforcement is resolved through infringement notices rather than court proceedings. It may also mean that the primary purpose test gives the ACMA sufficient flexibility to settle matters without litigation. The deemed nominee provision has likely reduced disputes over consent because it provides a clear rule.

Any litigation would likely focus on whether a call’s primary purpose was genuinely the exempt purpose. For instance, a payment reminder call that spends most of the conversation cross-selling could be challenged. No such case is reported in the source.

The most important “gotcha” is the primary purpose test. A call that is classified as an exempt type (e.g. “appointment reminder”) does not automatically become exempt if the conversation is dominated by sales pitches. The examples show incidental selling, but if the selling becomes the primary purpose, the call loses the exemption. Call scripts must be carefully designed to ensure the initial purpose dominates. A call that begins with a recall notice but quickly moves to upselling could be found to have a primary purpose of selling.

The notion of “reasonable time” for solicited calls (regulation 6(7)(d)) is undefined. A call made six months after a customer request may not be within a reasonable time. Businesses should establish internal policies (e.g., 30 days) to avoid risk.

The deemed nominee provision (regulation 7) does not apply if the individual provides the number for a purpose other than being contacted. For example, if someone gives a friend’s number for identification verification, not for contact, the provision may not operate. The individual must have given the number “for the purpose of allowing the person or organisation to contact the individual”. If the purpose is unclear, documented consent is safer.

Calls that are not answered still count as exempt if the primary purpose was exempt (regulation 6(8)). This means a business that leaves a voicemail for a recall notice is still covered, even if the customer never picks up. However, if the purpose was to sell and the call is unanswered, the call is still a telemarketing call (because the primary purpose is telemarketing, just not fulfilled). This does not create an exemption; it merely clarifies the timing of the test.

The deemed nominee provision does not give the nominee any power to register the number on the Do Not Call Register. Only the account holder can do that. So a deemed nominee cannot override the account holder’s registration decision. However, if the account holder later registers the number, calls to that number become prohibited even if a deemed nominee previously consented. The business must then stop calling unless another exemption applies.

The examples in regulation 6 are not exhaustive. A call for a purpose not listed cannot claim an exemption. For instance, a call to conduct a customer satisfaction survey is not listed; such a call would be a telemarketing call if it falls within the Act’s definition (e.g. if the survey is market research promoting goods). The Regulations do not exempt research calls.

An organisation that makes voice calls to Australian numbers should implement the following steps to ensure compliance with the Do Not Call Register Act and to take advantage of the exemptions in the Regulations.

First, categorise every outbound call campaign by its intended primary purpose. If the primary purpose falls within one of the six categories in regulation 6, the call does not need to be checked against the Do Not Call Register. Create a written compliance policy that identifies which campaigns are exempt and document the primary purpose for each.

For product recall calls: maintain records of the recall, the batch numbers, and the customer purchase data. Ensure the call focuses on informing the customer and arranging return or replacement. Incidental offers of alternative goods are permitted, but the script should start with the recall message.

For fault rectification calls: have a system to trigger calls when a fault is detected. Keep records of the fault, the attempted rectification, and the call outcome. The primary purpose must be to inform or fix, not to sell. If you discuss bundling services, keep it brief and secondary.

For appointment rescheduling and reminder calls: use automated systems or live agents with a script that immediately states the purpose. Do not use these calls as a pretext for selling; the examples show that a discount offer or product promotion can be mentioned briefly, but the call should not consist mostly of selling.

For payment-related calls: ensure the call is genuinely about collecting a payment, offering payment options, or notifying of an overdue amount. If you cross-sell, test the call recording to see if the cross-selling portion occupies more than a minor part.

For solicited calls: maintain a record of the customer’s original request, order, or inquiry. Record the date and mode of the request. Only call within a reasonable time (e.g., define a policy of 14 to 28 days). If the customer withdraws the request, do not call. Do not rely on a request that is vague (e.g., “call me about any offers”). The request should be specific enough that the call relates to it.

For calls not answered: still comply by designing the call as if it will be answered. The primary purpose is determined when the call is made, not when answered.

Regarding deemed nominees: where you collect a telephone number from an individual who is not the account holder, ensure you document that the individual gave the number for the purpose of being contacted. Ideally, obtain a signed consent form or an electronic checkbox stating “I confirm that I am authorised to provide this number for contact purposes and consent to being contacted at that number.” This protects against disputes about the purpose. The deemed nominee provision will then cover calls, but it is good practice to also notify the account holder if possible.

Finally, train call centre staff on the primary purpose rule and the specific categories. Monitor calls regularly to spot drift into telemarketing. Keep records of call scripts, training materials, and compliance audits. The ACMA may request these if investigating a complaint. Having clear documentation reduces enforcement risk and demonstrates good faith.