Issues with the Australian Spam Act 2003


  1. Introduction
  2. The Review
  3. Questions
  4. Responses
  5. Other Spam Acts

    See Also

  6. Computers and Telecommuncations
  7. Other Technology
  8. Home


Spam is unsolicited or undesired bulk electronic messages. The Australian Parliament enacted anti-spam legislation in 2003 (Spam Act 2003). This places requirements on those sending unsolicited email and SMS messages, with the Australian Communications and Media Authority (ACMA) responsible for enforcement.

The Spam Act requires a review and the Department of Communications, Information Technology and the Arts released an Issues Paper in December 2005 inviting comment. The paper is 59 pages (325 kbytes) of PDF. Some responses have been released publicly.

The Reivew

From the introduction of Spam Act 2003 Review Issues Paper, Department of Communications, Information Technology and the Arts, December 2005:

(i) Overview

In 2003 the Government introduced anti-spam legislation in response to community concerns about the growing spam problem. In the Australian context, spam is defined as unwanted, or 'unsolicited' commercial electronic messaging.

The Spam Act 2003 (the Spam Act) provides guidelines for sending legitimate commercial electronic messages and prohibits the sending of unsolicited commercial electronic messages, whether by email, instant messaging, short message service (SMS), or multimedia messaging. Under the Act, messages must be sent with consent - a single unsolicited commercial electronic message is considered to be spam. The Australian Communications and Media Authority (ACMA) is responsible for enforcing the Act.

The legislation forms part of a multi-layered strategy against spam. Domestic legislation and enforcement alone will not provide a complete solution. In addition to the legislation, the strategy consists of education and awareness activities, international cooperation, industry cooperation and technical countermeasures. These elements are designed to complement and reinforce each other. The multi-layered strategy seeks to minimise spam for Australian end-users, reduce Australia as a source of spam and promote Australia's involvement in worldwide anti-spam initiatives.

The legislation has provided a basis for curbing the activities of major professional spammers in Australia and has decreased the amount of Australian originated spam. It has also enabled the Australian Government to actively participate in international anti-spam agreements and activities.

To date, the Spam Act has been well received, from consumers and industry alike. The legislation has provided an avenue for the e-marketing industry to send legitimate consent-based commercial electronic messages. It has also been recommended as a template for other countries seeking to address spam.1

(ii) Review process

This legislative review is concerned with the operation of the Spam Act and the parts of the Telecommunications Act 1997 (the Telecommunications Act) that support its operation.

1 Spamhaus, 19 July, 2004- article, 'Follow Australia'

The Review

According to section 46 of the Spam Act, the Minister for Communications, Information Technology and the Arts must cause a review of the legislation to be conducted and tabled in Parliament by April 2006.

The review must consider the operation of the Spam Act as well as the relevant parts of the Telecommunications Act that provide ACMA with the necessary enforcement powers. These provisions also provide a framework to enable the development of industry codes relating to the sending of commercial electronic messages.

The Minister has directed the Department of Communications, Information Technology and the Arts to initiate a public consultation process as part of the review.

Structure of the issues paper

This issues paper poses questions throughout to assist individuals and organisations to develop submissions. A summary of questions raised are provided at Appendix A.

Part A provides a discussion on the Spam Act, and the relevant parts of the Telecommunications Act, by considering the operation of each part of the legislation in detail.

Part B deals with the operation of the legislation in the context of the multi-layered strategy:

Questions from the Review

From Appendix A of Spam Act 2003 Review Issues Paper, Department of Communications, Information Technology and the Arts, December 2005:

Summary of questions for comment


2.1 Spam Act - Part 1 - Introduction

2.1.2 Definition of a 'commercial electronic message'

The Spam Act covers commercial electronic messages.

Q1 Do you think this provides suitable coverage?

Q2 Does it include things that it should not?

Q3 Does it fail to cover things that should be included?

2.2 Spam Act Part 2 - Rules about sending commercial electronic messages

2.2.1 Unsolicited commercial electronic messages must not be sent

Q4 Does this provision cover messages that it should not?

Q5 Are there spam messages that are not currently covered by this provision that should be?

Q6 Does this provision suitably cover the spam problem?

2.2.2 The identification requirement

Q7 Is this a suitable requirement for commercial electronic messages?

2.2.3 The unsubscribe requirement

Q8 Is this a suitable requirement for legitimate commercial electronic messages?

2.3 Spam Act - Part 3 - Rules about address-harvesting software and harvested address lists

Q9 Do the address harvesting provisions suitably cover spam-related activities?

Q10 Do these provisions cover circumstances that they should not?

2.4 Spam Act - Enforcement

Q11 Are these enforcement measures suitable and appropriate?

Q12 Are there any spamming activities so serious as to warrant criminal sanctions?

Q13 Are the investigatory powers granted in these sections sufficient and appropriate for effective enforcement of the Spam Act?

Q14 Do they go too far?

Q15 Do they not go far enough?

2.6 Designated commercial electronic messages

Q16 Are the provisions relating to designated commercial electronic messages necessary?

Q17 Are these provisions appropriate as to:

(a) exemption from the prohibition on unsolicited commercial electronic messages?

(b) exemption from the requirement for a functional unsubscribe facility?

(c) other issues?

2.7 Spam Act - Schedule 2 - Consent

A key principle of the Spam Act is that people should be able to decide what messages are sent to them, and have that decision respected.

Q18 Do the consent provisions effectively support people's ability to choose what messages are sent to them?

Q 19 Do the consent provisions provide a clear distinction between legitimate commercial electronic messages and spam?

2.8 Other - Facsimile spam

Q20 Should commercial electronic messages sent by facsimile be covered by the Act?

Q21 Why?

Q22 Why not?

General Questions on Part A


4 The role of industry

Q23 Does the eMarketing Code of Practice sufficiently cover the practice of e-marketing?

Q24 Is the application of the eMarketing Code too wide?

Q25 Is the application of the eMarketing Code too narrow?

Q26 Are industry codes useful and successful?

Q27 What could be done to aid their success?

Q28 From an industry perspective, what has been the impact of the Spam Act?

5 International cooperation

Q29 There are privacy and other legislative constraints on spam investigations which require the sharing of information about spam and spammers across borders. Should these constraints be addressed? How?

6 Information and awareness

Q30 Are there other types of awareness activities that should be undertaken in relation to the Spam Act?

Q31 Is there scope for further government/industry collaboration in relation to education and awareness activities?


Other Spam Acts

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