ACMA may request codes
118 ACMA may request codes
If the ACMA is satisfied that a body or association represents a particular section of the telecommunications industry, the telemarketing industry or the fax marketing industry, the ACMA may, by written notice given to the body or association, request the body or association to:
develop an industry code that applies to participants in that section of the industry and deals with one or more specified matters relating to the telecommunications activities, telemarketing activities or fax marketing activities, as the case may be, of those participants; and
give the ACMA a copy of the code within the period specified in the notice.
The ACMA may request the body or association to develop the industry code to replace an earlier industry code that the Information Commissioner (exercising functions under the Privacy Act 1988) has advised the ACMA is inconsistent with the Australian Privacy Principles or a relevant registered APP code (as defined in that Act).
The period specified in a notice under subsection (1) must run for at least 120 days.
The ACMA must not make a request under subsection (1) in relation to a particular section of the telecommunications industry, the telemarketing industry or the fax marketing industry unless the ACMA is satisfied that:
the development of the code is necessary or convenient in order to:
provide appropriate community safeguards; or
otherwise deal with the performance or conduct of participants in that section of the industry; and
in the absence of the request, it is unlikely that an industry code would be developed within a reasonable period.
The ACMA must not make a request under subsection (1) in relation to a code if:
the code would deal with a matter referred to in paragraph 113(3)(f) (which relates to privacy); and
compliance with the code would be likely to have the effect (whether direct or indirect) of requiring customer equipment, customer cabling, a telecommunications network or a facility:
to have particular design features; or
to meet particular performance requirements.
However, this rule does not apply if the ACMA is satisfied that the benefits to the community from the operation of the code would outweigh the costs of compliance with the code.
The rule in subsection (4) does not apply to a code to the extent (if any) to which compliance with the code is likely to have the effect (whether direct or indirect) of requiring:
optical fibre lines; or
facilities used, or for use, in or in connection with optical fibre lines;
to:
have particular design features; or
meet particular performance requirements.
The ACMA must consult the Information Commissioner before making a request under subsection (1) for the development of an industry code that could reasonably be expected to deal directly or indirectly with a matter dealt with by:
the Australian Privacy Principles; or
other provisions of the Privacy Act 1988 relating to those principles; or
a registered APP code (as defined in that Act) that binds one or more participants in the section of the telecommunications industry, the telemarketing industry or the fax marketing industry to which the request relates; or
provisions of that Act that relate to the registered APP code.
The ACMA may vary a notice under subsection (1) by extending the period specified in the notice.
Subsection (5) does not, by implication, limit the application of subsection 33(3) of the Acts Interpretation Act 1901.
A notice under subsection (1) may specify indicative targets for achieving progress in the development of the code (for example, a target of 60 days to develop a preliminary draft of the code).
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