Spam Act 2003: Act No. 129 of 2003 As Amended

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
Contents
Part 1—Introduction 1
1 Short title.......................................................................................1
2 Commencement .............................................................................1
3 Simplified outline ..........................................................................2
4 Definitions.....................................................................................3
5 Electronic messages .......................................................................8
6 Commercial electronic messages ....................................................9
7 Australian link .............................................................................10
8 Authorising the sending of electronic messages.............................11
9 Sending of electronic messages—carriage service providers ..........12
10 Continuity of partnerships ............................................................12
11 Extended meaning of use..............................................................12
12 Crown to be bound.......................................................................12
13 Extension to external Territories...................................................12
14 Extra-territorial application...........................................................12
Part 2—Rules about sending commercial electronic messages 13

15 Simplified outline ........................................................................13
16 Unsolicited commercial electronic messages must not be
sent..............................................................................................13
17 Commercial electronic messages must include accurate
sender information .......................................................................15
18 Commercial electronic messages must contain a functional
unsubscribe facility ......................................................................16
Part 3—Rules about address-harvesting software and

harvested-address lists 19
20 Address-harvesting software and harvested-address lists
must not be supplied.....................................................................19
must not be acquired ....................................................................20
must not be used ..........................................................................21
Part 4—Civil penalties 23

24 Pecuniary penalties for contravention of civil penalty
provisions ....................................................................................23
25 Maximum penalties for contravention of civil penalty
provisions ....................................................................................24
26 Civil action for recovery of pecuniary penalties.............................26
Spam Act 2003 iii

27 Criminal proceedings not to be brought for contravention of
civil penalty provisions ................................................................27
28 Ancillary orders—compensation...................................................27
29 Ancillary orders—recovery of financial benefit.............................28
30 Schedule 3 (infringement notices).................................................28
Part 5—Injunctions 29
32 Injunctions...................................................................................29
33 Interim injunctions.......................................................................29
34 Discharge etc. of injunctions.........................................................30
35 Certain limits on granting injunctions not to apply.........................30
36 Other powers of the Federal Court unaffected ...............................31
Part 6—Enforceable undertakings 32

38 Acceptance of undertakings..........................................................32
39 Enforcement of undertakings........................................................32
40 Assessment of compensation for breach of undertaking.................33
Part 7—Miscellaneous 34
41 Formal warnings—breach of civil penalty provision......................34
42 Additional ACMA functions.........................................................34
43 Operation of State and Territory laws............................................34
44 Implied freedom of political communication.................................34
45 Giving effect to international conventions.....................................35
46 Review of operation of Act...........................................................35
47 Regulations..................................................................................36
Schedule 1—Designated commercial electronic

messages 37
1 Object..........................................................................................37
2 Factual information ......................................................................37
3 Government bodies, political parties, religious organisations
and charities.................................................................................38
4 Educational institutions ................................................................38
5 Regulations..................................................................................39
Schedule 2—Consent 40
1 Object..........................................................................................40
2 Basic definition............................................................................40
3 Users of account authorised to consent on behalf of relevant
electronic account-holder .............................................................40
4 When consent may be inferred from publication of an
electronic address.........................................................................41
iv Spam Act 2003

5 Regulations about consent ............................................................42
6 When withdrawal of consent takes effect ......................................42
Schedule 3—Infringement notices 44

1 Object..........................................................................................44
2 Definitions...................................................................................44
3 When an infringement notice can be given....................................44
4 Matters to be included in an infringement notice ...........................45
5 Amount of penalty .......................................................................46
6 Withdrawal of an infringement notice ...........................................47
7 What happens if the penalty is paid...............................................48
8 Effect of this Schedule on civil proceedings ..................................48
9 Appointment of authorised person ................................................48
10 Regulations..................................................................................49
Notes 51
Spam Act 2003 v

An Act about spam, and for related purposes
Part 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.
Commencement information
Column 1 Column 2 Column 3
Provision(s) Commencement Date/Details
1. Sections 1 and The day on which this Act receives the 12 December
2 and anything in Royal Assent. 2003
this Act not
elsewhere covered
by this table
2. Sections 3 to The day on which this Act receives the 12 December
14 Royal Assent. 2003
3. Parts 2 to 6 On the day after the end of the period of 120 10 April 2004
days beginning on the day on which this Act
receives the Royal Assent.
4. Section 41 On the day after the end of the period of 120 10 April 2004
5. Section 42 The day on which this Act receives the 12 December
Royal Assent. 2003
6. Sections 43 to On the day after the end of the period of 120 10 April 2004
46 days beginning on the day on which this Act
7. Section 47 The day on which this Act receives the 12 December
Royal Assent. 2003
Spam Act 2003 1

Part 1 Introduction
Section 3
8. Schedule 1 On the day after the end of the period of 120 10 April 2004
9. Schedule 2 The day on which this Act receives the 12 December
Royal Assent. 2003
10. Schedule 3 On the day after the end of the period of 120 10 April 2004
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.
2 Spam Act 2003

Introduction Part 1
Section 4
• 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.
Spam Act 2003 3

Part 1 Introduction
Section 4
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
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
4 Spam Act 2003

Introduction Part 1
Section 4
(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.
Spam Act 2003 5

Part 1 Introduction
Section 4
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
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.
Note: For treatment of partnerships, see section 585 of the
publish includes:
(a) publish on the Internet; and
(b) publish to the public or a section of the public.
6 Spam Act 2003

Introduction Part 1
Section 4
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.
Note: See also section 9.
services has the same meaning as in the Trade Practices Act 1974.
software includes a combination of software and associated data.
standard telephone service has the same meaning as in the
Telecommunications (Consumer Protection and Service Standards)
Act 1999.
supply:
(a) when used in relation to goods or services—has the same
meaning as in the Trade Practices Act 1974; or
(b) when used in relation to land—includes transfer; or
(c) when used in relation to an interest in land—includes transfer
or create.
use has a meaning affected by section 11.
voice call means:
Spam Act 2003 7

Part 1 Introduction
Section 5
(a) a voice call within the ordinary meaning of that expression;

or
(b) a call that involves a recorded or synthetic voice; or
(c) if a call covered by paragraph (a) or (b) is not practical for a
particular customer with a disability (for example, because
the customer has a hearing impairment)—a call that is
equivalent to a call covered by either of those paragraphs;
whether or not the customer responds by way of pressing buttons
on a telephone handset or similar thing.
5 Electronic messages
Basic definition
(1) For the purposes of this Act, an electronic message is a message
sent:
(a) using:
(i) an Internet carriage service; or
(ii) any other listed carriage service; and
(b) to an electronic address in connection with:
(i) an e-mail account; or
(ii) an instant messaging account; or
(iii) a telephone account; or
(iv) a similar account.
Note: E-mail addresses and telephone numbers are examples of electronic
addresses.
(2) For the purposes of subsection (1), it is immaterial whether the

electronic address exists.
(3) For the purposes of subsection (1), it is immaterial whether the
message reaches its intended destination.
(4) Subsection (1) has effect subject to subsection (5).
Excluded messages—voice calls

(5) If a message is sent by way of a voice call made using a standard
telephone service, the message is not an electronic message for the
purposes of this Act.
8 Spam Act 2003

Introduction Part 1
Section 6
6 Commercial electronic messages
Basic definition
(1) For the purposes of this Act, a commercial electronic message is
an electronic message, where, having regard to:
(a) the content of the message; and
(b) the way in which the message is presented; and
(c) the content that can be located using the links, telephone
numbers or contact information (if any) set out in the
message;
it would be concluded that the purpose, or one of the purposes, of
the message is:
(d) to offer to supply goods or services; or
(e) to advertise or promote goods or services; or
(f) to advertise or promote a supplier, or prospective supplier, of
goods or services; or
(g) to offer to supply land or an interest in land; or
(h) to advertise or promote land or an interest in land; or
(i) to advertise or promote a supplier, or prospective supplier, of
land or an interest in land; or
(j) to offer to provide a business opportunity or investment
opportunity; or
(k) to advertise or promote a business opportunity or investment
opportunity; or
(l) to advertise or promote a provider, or prospective provider,
of a business opportunity or investment opportunity; or
(m) to assist or enable a person, by a deception, to dishonestly
obtain property belonging to another person; or
(n) to assist or enable a person, by a deception, to dishonestly
obtain a financial advantage from another person; or
(o) to assist or enable a person to dishonestly obtain a gain from
another person; or
(p) a purpose specified in the regulations.
(2) For the purposes of paragraphs (1)(d) to (l), it is immaterial
whether the goods, services, land, interest or opportunity exists.
Spam Act 2003 9

Part 1 Introduction
Section 7
(3) For the purposes of paragraphs (1)(d) to (l), it is immaterial

whether it is lawful to acquire the goods, services, land or interest
or take up the opportunity.
(4) Any of the following:
(a) the supplier or prospective supplier mentioned in
paragraph (1)(f) or (i);
(b) the provider or prospective provider mentioned in
paragraph (1)(l);
(c) the person first mentioned in paragraph (1)(m), (n) or (o);
may be the individual or organisation who sent the message or
authorised the sending of the message.
(5) Paragraphs (1)(d) to (p) are to be read independently of each other.
(6) Subsection (1) has effect subject to subsection (7).
Excluded messages—regulations
(7) The regulations may provide that a specified kind of electronic
message is not a commercial electronic message for the purposes
of this Act.
Interpretation
(8) An expression used in paragraph (1)(m) of this section and in
section 134.1 of the Criminal Code has the same meaning in that
paragraph as it has in that section.
(9) An expression used in paragraph (1)(n) of this section and in
(10) An expression used in paragraph (1)(o) of this section and in
7 Australian link
For the purposes of this Act, a commercial electronic message has
an Australian link if, and only if:
(a) the message originates in Australia; or
10 Spam Act 2003

Introduction Part 1
Section 8
(b) the individual or organisation who sent the message, or

authorised the sending of the message, is:
(i) an individual who is physically present in Australia
when the message is sent; or
(ii) an organisation whose central management and control
is in Australia when the message is sent; or
(c) the computer, server or device that is used to access the
message is located in Australia; or
(d) the relevant electronic account-holder is:
(i) an individual who is physically present in Australia
when the message is accessed; or
(ii) an organisation that carries on business or activities in
Australia when the message is accessed; or
(e) if the message cannot be delivered because the relevant
electronic address does not exist—assuming that the
electronic address existed, it is reasonably likely that the
message would have been accessed using a computer, server
or device located in Australia.
8 Authorising the sending of electronic messages
Attribution of authorisation to organisation

(1) For the purposes of this Act (including subsection (2)), if:
(a) an individual authorises the sending of an electronic
message; and
(b) the individual does so on behalf of an organisation;
then:
(c) the organisation is taken to authorise the sending of the
electronic message; and
(d) the individual is taken not to authorise the sending of the
electronic message.
Self-authorisation
(2) For the purposes of this Act, if:
(a) an electronic message is sent by an individual or
organisation; and
(b) the sending of the message is not authorised by any other
individual or organisation;
Spam Act 2003 11

Part 1 Introduction
Section 9
the first-mentioned individual or organisation is taken to authorise

the sending of the message.
9 Sending of electronic messages—carriage service providers

(1) For the purposes of this Act, a person does not send an electronic
message, or cause an electronic message to be sent, merely because
the person supplies a carriage service that enables the message to
be sent.
(2) Subsection (1) is enacted for the avoidance of doubt.
10 Continuity of partnerships
For the purposes of this Act, a change in the composition of a
partnership does not affect the continuity of the partnership.
11 Extended meaning of use

Unless the contrary intention appears, a reference in this Act to the
use of a thing is a reference to the use of the thing either:
(a) in isolation; or
(b) in conjunction with one or more other things.
12 Crown to be bound
(1) This Act binds the Crown in each of its capacities.
(2) This Act does not make the Crown liable to a pecuniary penalty or
to be prosecuted for an offence.
(3) The protection in subsection (2) does not apply to an authority of
the Crown.
13 Extension to external Territories

This Act extends to every external Territory.
14 Extra-territorial application
Unless the contrary intention appears, this Act extends to acts,
omissions, matters and things outside Australia.
12 Spam Act 2003

Rules about sending commercial electronic messages Part 2
Section 15
Part 2—Rules about sending commercial electronic

messages
The following is a simplified outline of this Part:
• 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.
16 Unsolicited commercial electronic messages must not be sent

(1) A person must not send, or cause to be sent, a commercial
electronic message that:
(a) has an Australian link; and
(b) is not a designated commercial electronic message.
Note 1: For Australian link, see section 7.
Note 2: For designated commercial electronic message, see Schedule 1.
(2) Subsection (1) does not apply if the relevant electronic

account-holder consented to the sending of the message.
Note: For the meaning of consent, see Schedule 2.
(3) Subsection (1) does not apply if the person:

(a) did not know; and
(b) could not, with reasonable diligence, have ascertained;
that the message had an Australian link.
(4) Subsection (1) does not apply if the person sent the message, or
caused the message to be sent, by mistake.
Spam Act 2003 13

Part 2 Rules about sending commercial electronic messages
Section 16
(5) A person who wishes to rely on subsection (2), (3) or (4) bears an
evidential burden in relation to that matter.
Message must not be sent to a non-existent electronic address

electronic message to a non-existent electronic address if:
(a) the person did not have reason to believe that the electronic
address existed; and
(b) the electronic message:
(i) has an Australian link; and
(ii) is not a designated commercial electronic message.
(8) A person who wishes to rely on subsection (7) bears an evidential
burden in relation to that matter.
Ancillary contraventions
(9) A person must not:
(a) aid, abet, counsel or procure a contravention of
subsection (1) or (6); or
(b) induce, whether by threats or promises or otherwise, a
contravention of subsection (1) or (6); or
(c) be in any way, directly or indirectly, knowingly concerned in,
or party to, a contravention of subsection (1) or (6); or
(d) conspire with others to effect a contravention of
subsection (1) or (6).
(10) A person does not contravene subsection (9) merely because the
person supplies a carriage service that enables an electronic
message to be sent.
Civil penalty provisions

(11) Subsections (1), (6) and (9) are civil penalty provisions.
Note: Part 4 provides for pecuniary penalties for breaches of civil penalty
provisions.
14 Spam Act 2003

Section 17
17 Commercial electronic messages must include accurate sender

information
electronic message that has an Australian link unless:
(a) the message clearly and accurately identifies the individual or
organisation who authorised the sending of the message; and
(b) the message includes accurate information about how the
recipient can readily contact that individual or organisation;
and
(c) that information complies with the condition or conditions (if
any) specified in the regulations; and
(d) that information is reasonably likely to be valid for at least 30
days after the message is sent.
Note: For Australian link, see section 7.

(4) A person who wishes to rely on subsection (2) or (3) bears an
subsection (1); or
contravention of subsection (1); or
or party to, a contravention of subsection (1); or
subsection (1).
message to be sent.
Spam Act 2003 15

Section 18

(7) Subsections (1) and (5) are civil penalty provisions.
provisions.
18 Commercial electronic messages must contain a functional

unsubscribe facility
electronic message that:
(a) has an Australian link; and
(b) is not a designated commercial electronic message;
unless:
(c) the message includes:
(i) a statement to the effect that the recipient may use an
electronic address set out in the message to send an
unsubscribe message to the individual or organisation
who authorised the sending of the first-mentioned
message; or
(ii) a statement to similar effect; and
(d) the statement is presented in a clear and conspicuous manner;
and
(e) the electronic address is reasonably likely to be capable of
receiving:
(i) the recipient’s unsubscribe message (if any); and
(ii) a reasonable number of similar unsubscribe messages
sent by other recipients (if any) of the same message;
at all times during a period of at least 30 days after the
message is sent; and
(f) the electronic address is legitimately obtained; and
(g) the electronic address complies with the condition or
conditions (if any) specified in the regulations.
Note 1: For unsubscribe message, see subsection (8).
Note 2: For Australian link, see section 7.
Note 3: For designated commercial electronic message, see Schedule 1.

16 Spam Act 2003

Section 18

(3) Subsection (1) does not apply to the extent (if any) to which it is
inconsistent with the terms of a contract or other agreement
between:
(a) the individual or organisation who authorised the sending of
the first-mentioned message; and
(b) the relevant electronic account-holder.
(5) A person who wishes to rely on subsection (2), (3) or (4) bears an
subsection (1); or
subsection (1).
message to be sent.

provisions.
Unsubscribe message
(9) For the purposes of the application of this section to a commercial
electronic message, where the sending of the message is authorised
by an individual or organisation, an unsubscribe message is:
Spam Act 2003 17

Section 18
(a) an electronic message to the effect that the relevant electronic

account-holder does not want to receive any further
commercial electronic messages from or authorised by that
individual or organisation; or
(b) an electronic message to similar effect.
18 Spam Act 2003

Rules about address-harvesting software and harvested-address lists Part 3
Section 19
Part 3—Rules about address-harvesting software

and harvested-address lists
• 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.
20 Address-harvesting software and harvested-address lists must

not be supplied
(1) A person (the supplier) must not supply or offer to supply:
(a) address-harvesting software; or
(b) a right to use address-harvesting software; or
(c) a harvested-address list; or
(d) a right to use a harvested-address list;
to another person (the customer) if:
(e) the supplier is:
(i) an individual who is physically present in Australia at
the time of the supply or offer; or
(ii) a body corporate or partnership that carries on business
or activities in Australia at the time of the supply or
offer; or
(f) the customer is:
(i) an individual who is physically present in Australia at
the time of the supply or offer; or
(ii) a body corporate or partnership that carries on business
or activities in Australia at the time of the supply or
offer.
Spam Act 2003 19

Part 3 Rules about address-harvesting software and harvested-address lists
Section 21
(2) Subsection (1) does not apply if the supplier had no reason to
suspect that the customer, or another person, intended to use the
address-harvesting software or the harvested-address list, as the
case may be, in connection with sending commercial electronic
messages in contravention of section 16.
(3) Subsection (1) does not apply if the supplier:
that the customer was:
(c) an individual who was physically present in Australia at the
time of the supply or offer; or
(d) a body corporate or partnership that carried on business or
activities in Australia at the time of the supply or offer.
(4) A person who wishes to rely on subsection (3) bears an evidential
burden in relation to that matter.
subsection (1); or
subsection (1).

provisions.

not be acquired
(1) A person must not acquire:
20 Spam Act 2003

Rules about address-harvesting software and harvested-address lists Part 3
Section 22
(b) a right to use address-harvesting software; or

(c) a harvested-address list; or
(d) a right to use a harvested-address list;
if the person is:
(e) an individual who is physically present in Australia at the
time of the acquisition; or
(f) a body corporate or partnership that carries on business or
activities in Australia at the time of the acquisition.
(2) Subsection (1) does not apply if the person did not intend to use the
address-harvesting software or the harvested-address list, as the
case may be, in connection with sending commercial electronic
subsection (1); or
subsection (1).

provisions.

not be used
(1) A person must not use:
(b) a harvested-address list;
if the person is:
Spam Act 2003 21

Part 3 Rules about address-harvesting software and harvested-address lists
Section 22
(c) an individual who is physically present in Australia at the

time of the use; or
(d) a body corporate or partnership that carries on business or
activities in Australia at the time of the use.
(2) Subsection (1) does not apply in relation to the use of

address-harvesting software or a harvested-address list, if the use
was not in connection with sending commercial electronic
subsection (1); or
subsection (1).

provisions.
22 Spam Act 2003

Civil penalties Part 4
Section 23
Part 4—Civil penalties
• Pecuniary penalties are payable for contraventions of civil

penalty provisions.
• Proceedings for the recovery of penalties are to be instituted in

the Federal Court.
• The Federal Court may make ancillary orders:
(a) directing the payment of compensation to a victim

of a contravention of a civil penalty provision; and
(b) directing the payment to the Commonwealth of an

amount up to the amount of any financial benefit
that is attributable to a contravention of a civil
penalty provision.
Note: Schedule 3 sets up a system of infringement notices relating to

contraventions of civil penalty provisions.
24 Pecuniary penalties for contravention of civil penalty provisions

(1) If the Federal Court is satisfied that a person has contravened a
civil penalty provision, the Court may order the person to pay to
the Commonwealth such pecuniary penalty, in respect of each
contravention, as the Court determines to be appropriate.
(2) In determining the pecuniary penalty, the Court must have regard
to all relevant matters, including:
(a) the nature and extent of the contravention; and
(b) the nature and extent of any loss or damage suffered as a
result of the contravention; and
(c) the circumstances in which the contravention took place; and
Spam Act 2003 23

Part 4 Civil penalties
Section 25
(d) whether the person has previously been found by the Court in
proceedings under this Act to have engaged in any similar
conduct; and
(e) if the Court considers that it is appropriate to do so—whether
the person has previously been found by a court in a foreign
country to have engaged in any similar conduct.
25 Maximum penalties for contravention of civil penalty provisions

(1) The maximum penalty payable under subsection 24(1) by a person
in respect of a contravention of a civil penalty provision depends
on:
(a) whether the person has a prior record in relation to the civil
penalty provision (see subsection (2)); and
(b) whether the person is a body corporate; and
(c) whether the civil penalty provision is subsection 16(1), (6) or
(9).
Prior record
(2) If:
(a) on a particular day (the first day), the Federal Court makes an
order under subsection 24(1) against a person in respect of a
contravention of a particular civil penalty provision; and
(b) that is the first occasion on which the Federal Court makes an
order under subsection 24(1) against the person in respect of
a contravention of the civil penalty provision;
then, for the purposes of determining the penalty payable under
subsection 24(1) by the person in respect of a contravention of the
civil penalty provision that occurs after the first day, the person has
a prior record in relation to the civil penalty provision.
Maximum penalty payable by body corporate—no prior record

(3) If a body corporate does not have a prior record in relation to a
particular civil penalty provision:
(a) the penalty payable under subsection 24(1) by the body
corporate in respect of a contravention of the civil penalty
provision must not exceed:
(i) if the civil penalty provision is subsection 16(1), (6) or
(9)—100 penalty units; or
24 Spam Act 2003

Section 25
(ii) in any other case—50 penalty units; and

(b) if the Federal Court finds that the body corporate has, on a
particular day, committed 2 or more contraventions of the
civil penalty provision—the total of the penalties payable
under subsection 24(1) by the body corporate in respect of
those contraventions must not exceed:
(9)—2,000 penalty units; or
(ii) in any other case—1,000 penalty units.
Maximum penalty payable by a person other than a body

corporate—no prior record
(4) If a person other than a body corporate does not have a prior record
in relation to a particular civil penalty provision:
(a) the penalty payable under subsection 24(1) by the person in
respect of a contravention of the civil penalty provision must
not exceed:
(b) if the Federal Court finds that the person has, on a particular
day, committed 2 or more contraventions of the civil penalty
provision—the total of the penalties payable under
subsection 24(1) by the person in respect of those
contraventions must not exceed:
(ii) in any other case—200 penalty units.
Maximum penalty payable by body corporate—prior record

(5) If a body corporate has a prior record in relation to a particular
civil penalty provision:
(a) the penalty payable under subsection 24(1) by the body
corporate in respect of a contravention of the civil penalty
provision must not exceed:
Spam Act 2003 25

Section 26
(b) if the Federal Court finds that the body corporate has, on a
particular day, committed 2 or more contraventions of the
civil penalty provision—the total of the penalties payable
under subsection 24(1) by the body corporate in respect of
those contraventions must not exceed:
Maximum penalty payable by a person other than a body

corporate—prior record
(6) If a person other than a body corporate has a prior record in
relation to a particular civil penalty provision:
(a) the penalty payable under subsection 24(1) by the person in
respect of a contravention of the civil penalty provision must
not exceed:
(b) if the Federal Court finds that the person has, on a particular
day, committed 2 or more contraventions of the civil penalty
provision—the total of the penalties payable under
subsection 24(1) by the person in respect of those
contraventions must not exceed:
26 Civil action for recovery of pecuniary penalties

(1) The ACMA may institute a proceeding in the Federal Court for the
recovery on behalf of the Commonwealth of a pecuniary penalty
referred to in section 24.
(2) A proceeding under subsection (1) may be commenced within 6
years after the contravention.
(3) The Federal Court may direct that 2 or more proceedings under
subsection (1) are to be heard together.
26 Spam Act 2003

Section 27
27 Criminal proceedings not to be brought for contravention of civil

penalty provisions
Criminal proceedings do not lie against a person only because the
person has contravened a civil penalty provision.
28 Ancillary orders—compensation
(1) If:
(a) in one or more proceedings under section 26, the Federal
Court finds that a person (the perpetrator) has contravened
one or more civil penalty provisions; and
(b) the Court is satisfied that another person (the victim) has
suffered loss or damage as a result of any or all of those
contraventions;
the Court may, on the application of the ACMA or the victim,
make an order that the Court considers appropriate directing the
perpetrator to compensate the victim.
(2) In determining whether a person (the victim) has suffered loss or
damage as a result of one or more contraventions by another
person of section 16 in relation to the sending of one or more
commercial electronic messages, and in assessing the amount of
compensation payable, the Court may have regard to the following:
(a) the extent to which any expenses incurred by the victim are
attributable to dealing with the messages;
(b) the effect of dealing with the messages on the victim’s ability
to carry on business or other activities;
(c) any damage to the reputation of the victim’s business that is
(d) any loss of business opportunities suffered by the victim as a
result of dealing with the messages;
(e) any other matters that the Court considers relevant.
(3) The Federal Court may make an order under subsection (1),
whether or not it makes an order under section 24.
(4) An application under subsection (1) may be made at any time
within 6 years after the contravention concerned.
Spam Act 2003 27

Section 29
29 Ancillary orders—recovery of financial benefit

(1) If:
(a) in one or more proceedings under section 26, the Federal
Court finds that a person has contravened one or more civil
penalty provisions; and
(b) the Court is satisfied that the person has obtained (whether
directly or indirectly) a financial benefit that is reasonably
attributable to any or all of those contraventions;
the Court may, on the application of the ACMA, make an order
directing the person to pay to the Commonwealth an amount up to
the amount of the financial benefit.
(2) The Federal Court may make an order under subsection (1),
whether or not it makes an order under section 24.
(3) An application under subsection (1) may be made at any time
within 6 years after the contravention concerned.
30 Schedule 3 (infringement notices)

Schedule 3 has effect.
28 Spam Act 2003

Injunctions Part 5
Section 31
Part 5—Injunctions
• The Federal Court may grant injunctions in relation to

contraventions of civil penalty provisions.
32 Injunctions
Restraining injunctions
(1) If a person has engaged, is engaging or is proposing to engage, in
any conduct in contravention of a civil penalty provision, the
Federal Court may, on the application of the ACMA, grant an
injunction:
(a) restraining the person from engaging in the conduct; and
(b) if, in the Court’s opinion, it is desirable to do so—requiring
the person to do something.
Performance injunctions
(2) If:
(a) a person has refused or failed, or is refusing or failing, or is
proposing to refuse or fail, to do an act or thing; and
(b) the refusal or failure was, is or would be a contravention of a
civil penalty provision;
the Federal Court may, on the application of the ACMA, grant an
injunction requiring the person to do that act or thing.
33 Interim injunctions
Grant of interim injunction

(1) If an application is made to the Federal Court for an injunction
under section 32, the Court may, before considering the
Spam Act 2003 29

Part 5 Injunctions
Section 34
application, grant an interim injunction restraining a person from

engaging in conduct of a kind referred to in that section.
No undertakings as to damages
(2) The Federal Court is not to require an applicant for an injunction
under section 32, as a condition of granting an interim injunction,
to give any undertakings as to damages.
34 Discharge etc. of injunctions

The Federal Court may discharge or vary an injunction granted
under this Part.
35 Certain limits on granting injunctions not to apply
Restraining injunctions
(1) The power of the Federal Court under this Part to grant an
injunction restraining a person from engaging in conduct of a
particular kind may be exercised:
(a) if the Court is satisfied that the person has engaged in
conduct of that kind—whether or not it appears to the Court
that the person intends to engage again, or to continue to
engage, in conduct of that kind; or
(b) if it appears to the Court that, if an injunction is not granted,
it is likely that the person will engage in conduct of that
kind—whether or not the person has previously engaged in
conduct of that kind and whether or not there is an imminent
danger of substantial damage to any person if the person
engages in conduct of that kind.
Performance injunctions
(2) The power of the Federal Court to grant an injunction requiring a
person to do an act or thing may be exercised:
(a) if the Court is satisfied that the person has refused or failed to
do that act or thing—whether or not it appears to the Court
that the person intends to refuse or fail again, or to continue
to refuse or fail, to do that act or thing; or
(b) if it appears to the Court that, if an injunction is not granted,
it is likely that the person will refuse or fail to do that act or
30 Spam Act 2003

Injunctions Part 5
Section 36
thing—whether or not the person has previously refused or

failed to do that act or thing and whether or not there is an
imminent danger of substantial damage to any person if the
person refuses or fails to do that act or thing.
36 Other powers of the Federal Court unaffected

The powers conferred on the Federal Court under this Part are in
addition to, and not instead of, any other powers of the Court,
whether conferred by this Act or otherwise.
Spam Act 2003 31

Part 6 Enforceable undertakings
Section 37
Part 6—Enforceable undertakings
• A person may give the ACMA an enforceable undertaking in

connection with a matter relating to:
(a) commercial electronic messages; or
(b) address-harvesting software.
38 Acceptance of undertakings
(1) The ACMA may accept a written undertaking given by a person
for the purposes of this section in connection with a matter relating
to:
(a) commercial electronic messages; or
(2) The person may withdraw or vary the undertaking at any time, but
only with the consent of the ACMA.
39 Enforcement of undertakings
(1) If the ACMA considers that a person who gave an undertaking
under section 38 has breached any of its terms, the ACMA may
apply to the Federal Court for an order under subsection (2).
(2) If the Federal Court is satisfied that the person has breached a term
of the undertaking, the Court may make any or all of the following
orders:
(a) an order directing the person to comply with that term of the
undertaking;
(b) an order directing the person to pay to the Commonwealth an
amount up to the amount of any financial benefit that the
person has obtained directly or indirectly and that is
reasonably attributable to the breach;
32 Spam Act 2003

Enforceable undertakings Part 6
Section 40
(c) any order that the Court considers appropriate directing the
person to compensate any other person who has suffered loss
or damage as a result of the breach;
(d) any other order that the Court considers appropriate.
40 Assessment of compensation for breach of undertaking

(1) This section applies if, in a proceeding under section 39, the
Federal Court finds that a person has breached a term of an
undertaking relating to the sending of commercial electronic
messages.
(2) In determining whether another person (the victim) has suffered
loss or damage as a result of the breach, and in assessing the
amount of compensation payable, the Court may have regard to the
following:
(a) the extent to which any expenses incurred by the victim are
(b) the effect of dealing with the messages on the victim’s ability
to carry on business or other activities;
(c) any damage to the reputation of the victim’s business that is
(d) any loss of business opportunities suffered by the victim as a
result of dealing with the messages;
(e) any other matters that the Court considers relevant.
Spam Act 2003 33

Part 7 Miscellaneous
Section 41
Part 7—Miscellaneous
41 Formal warnings—breach of civil penalty provision

The ACMA may issue a formal warning if a person contravenes a
civil penalty provision.
42 Additional ACMA functions

The ACMA has the following functions:
(a) to conduct and/or co-ordinate community education
programs about either or both of the following:
(i) unsolicited commercial electronic messages;
(ii) address-harvesting software;
in consultation with relevant industry and consumer groups
and government agencies;
(b) to conduct and/or commission research into issues relating to
either or both of the following:
(ii) address-harvesting software;
(c) to liaise with regulatory and other relevant bodies overseas
about co-operative arrangements for the prohibition or
regulation of either or both of the following:
(ii) address-harvesting software.
43 Operation of State and Territory laws

This Act is not intended to exclude or limit the operation of a law
of a State or Territory to the extent that the law is capable of
operating concurrently with this Act.
44 Implied freedom of political communication

This Act does not apply to the extent (if any) that it would infringe
any constitutional doctrine of implied freedom of political
communication.
34 Spam Act 2003

Miscellaneous Part 7
Section 45
45 Giving effect to international conventions

(1) The regulations may make provision for and in relation to giving
effect to an international convention that deals with either or both
of the following:
(a) commercial electronic messages;
(2) Regulations made for the purposes of subsection (1) may:
(a) vest the Federal Court with jurisdiction in a matter or matters
arising under the regulations; and
(b) prescribe penalties, not exceeding a fine of 50 penalty units,
for offences against the regulations; and
(c) declare that a specified provision of the regulations is a civil
penalty provision for the purposes of this Act.
46 Review of operation of Act

(1) Before the end of the period of 2 years after the commencement of
this section, the Minister must cause to be conducted a review of
the operation of:
(a) this Act; and
(b) the Telecommunications Act 1997 to the extent to which that
Act relates to this Act; and
(c) Part 6 of the Telecommunications Act 1997 to the extent to
which that Part:
(i) relates to e-marketing activities (within the meaning of
that Part); and
(ii) relates to activities that consist of carrying on business
as an electronic messaging service provider (within the
meaning of that Part); and
(iii) deals with industry codes, and industry standards,
relating to matters covered by paragraphs 113(3)(q) to
(v) of that Act.
(2) The Minister must cause to be prepared a report of a review under
subsection (1).
(3) The Minister must cause copies of a report to be tabled in each
House of the Parliament within 15 sittings days of that House after
the completion of the preparation of the report.
Spam Act 2003 35

Part 7 Miscellaneous
Section 47
47 Regulations
The Governor-General may make regulations prescribing matters:
(a) required or permitted to be prescribed by this Act; or
(b) necessary or convenient to be prescribed for carrying out or
giving effect to this Act.
36 Spam Act 2003

Designated commercial electronic messages Schedule 1
Clause 1
Schedule 1—Designated commercial

electronic messages
Note: See section 4.
1 Object
The object of this Schedule is to define the expression designated
commercial electronic message.
Note 1: Designated commercial electronic messages must comply with
section 17 (commercial electronic messages must include information
about the individual or organisation who authorised the sending of the
message).
Note 2: Designated commercial electronic messages are exempt from
section 16 (unsolicited commercial electronic messages must not be
sent) and section 18 (commercial electronic messages must contain a
functional unsubscribe facility).
2 Factual information
(1) For the purposes of this Act, an electronic message is a designated
commercial electronic message if:
(a) the message consists of no more than factual information
(with or without directly-related comment) and any or all of
the following additional information:
(i) the name, logo and contact details of the individual or
organisation who authorised the sending of the message;
(ii) the name and contact details of the author;
(iii) if the author is an employee—the name, logo and
contact details of the author’s employer;
(iv) if the author is a partner in a partnership—the name,
logo and contact details of the partnership;
(v) if the author is a director or officer of an organisation—
the name, logo and contact details of the organisation;
(vi) if the message is sponsored—the name, logo and
contact details of the sponsor;
(vii) information required to be included by section 17;
(viii) information that would have been required to be
included by section 18 if that section had applied to the
message; and
Spam Act 2003 37

Schedule 1 Designated commercial electronic messages
Clause 3
(b) assuming that none of that additional information had been

included in the message, the message would not have been a
commercial electronic message; and
(c) the message complies with such other condition or conditions
(if any) as are specified in the regulations.
3 Government bodies, political parties, religious organisations and

charities
For the purposes of this Act, an electronic message is a designated
(a) the sending of the message is authorised by any of the
following bodies:
(i) a government body;
(ii) a registered political party;
(iii) a religious organisation;
(iv) a charity or charitable institution; and
(b) the message relates to goods or services; and
(c) the body is the supplier, or prospective supplier, of the goods
or services concerned.
4 Educational institutions
For the purposes of this Act, an electronic message is a designated
(a) the sending of the message is authorised by an educational
institution; and
(b) either or both of the following subparagraphs applies:
(i) the relevant electronic account-holder is, or has been,
enrolled as a student in that institution;
(ii) a member or former member of the household of the
relevant electronic account-holder is, or has been,
enrolled as a student in that institution; and
(c) the message relates to goods or services; and
(d) the institution is the supplier, or prospective supplier, of the
goods or services concerned.
38 Spam Act 2003

Designated commercial electronic messages Schedule 1
Clause 5
5 Regulations
The regulations may provide that a specified kind of electronic
message is a designated commercial electronic message for the
purposes of this Act.
Spam Act 2003 39

Schedule 2 Consent
Clause 1
Schedule 2—Consent
1 Object
The object of this Schedule is to define the expression consent,
when used in relation to the sending of an electronic message.
Note: The concept of consent is relevant to section 16 (unsolicited
commercial electronic messages must not be sent). Subsection 16(2)
provides that a contravention of subsection 16(1) does not happen if
the relevant electronic account-holder consented to the sending of the
message.
2 Basic definition
For the purposes of this Act, consent means:
(a) express consent; or
(b) consent that can reasonably be inferred from:
(i) the conduct; and
(ii) the business and other relationships;
of the individual or organisation concerned.
3 Users of account authorised to consent on behalf of relevant

electronic account-holder
(1) For the purposes of this Act, if a person other than the relevant
electronic account-holder uses the relevant account to send an
electronic message about:
(a) consent; or
(b) withdrawal of consent; or
(c) refusal of consent;
that person is taken to have been authorised to send that message
on behalf of the relevant electronic account-holder.
(2) Subclause (1) does not, by implication, limit the circumstances in
which a person other than the relevant electronic account-holder
may:
(a) consent; or
(b) withdraw consent; or
40 Spam Act 2003

Consent Schedule 2
Clause 4
(c) refuse consent;

on behalf of the relevant electronic account-holder.
4 When consent may be inferred from publication of an electronic

address
(1) For the purposes of this Act, the consent of the relevant electronic
account-holder may not be inferred from the mere fact that the
relevant electronic address has been published.
Exception—conspicuous publication
(2) However, if:
(a) a particular electronic address enables the public, or a section
of the public, to send electronic messages to:
(i) a particular employee; or
(ii) a particular director or officer of an organisation; or
(iii) a particular partner in a partnership; or
(iv) a particular holder of a statutory or other office; or
(v) a particular self-employed individual; or
(vi) an individual from time to time holding, occupying or
performing the duties of, a particular office or position
within the operations of an organisation; or
(vii) an individual, or a group of individuals, from time to
time performing a particular function, or fulfilling a
particular role, within the operations of an organisation;
and
(b) the electronic address has been conspicuously published; and
(c) it would be reasonable to assume that the publication
occurred with the agreement of:
(i) if subparagraph (a)(i), (ii), (iii), (iv) or (v) applies—the
employee, director, officer, partner, office-holder or
self-employed individual concerned; or
(ii) if subparagraph (a)(vi) or (vii) applies—the organisation
concerned; and
(d) the publication is not accompanied by:
(i) a statement to the effect that the relevant electronic
account-holder does not want to receive unsolicited
commercial electronic messages at that electronic
address; or
Spam Act 2003 41

Schedule 2 Consent
Clause 5
(ii) a statement to similar effect;

the relevant electronic account-holder is taken, for the purposes of
this Act, to have consented to the sending of commercial electronic
messages to that address, so long as the messages are relevant to:
(e) if subparagraph (a)(i), (ii), (iii), (iv) or (v) applies—the
work-related business, functions or duties of the employee,
director, officer, partner, office-holder or self-employed
individual concerned; or
(f) if subparagraph (a)(vi) applies—the office or position
concerned; or
(g) if subparagraph (a)(vii) applies—the function or role
concerned.
5 Regulations about consent

(1) The regulations may provide that, for the purposes of this Act, the
consent of a relevant electronic account-holder may not be inferred
in the circumstances specified in the regulations.
(2) The regulations may provide that, for the purposes of this Act, the
consent of a relevant electronic account-holder may be inferred in
the circumstances specified in the regulations.
6 When withdrawal of consent takes effect

(1) For the purposes of this Act, if:
(a) one or more electronic messages have been sent to the
relevant electronic account-holder’s electronic address; and
(b) the relevant electronic account-holder has consented to the
sending of those commercial electronic messages to that
electronic address; and
(c) an individual or organisation authorised the sending of those
commercial electronic messages to that electronic address;
and
(d) the relevant electronic account-holder, or a user of the
relevant account, sends the individual or organisation:
(i) a message to the effect that the account-holder does not
want to receive any further commercial electronic
messages at that electronic address from or authorised
by that individual or organisation; or
(ii) a message to similar effect;
42 Spam Act 2003

Consent Schedule 2
Clause 6
the withdrawal of consent takes effect at the end of the period of 5

business days beginning on:
(e) if the message referred to in paragraph (d) is an electronic
message—the day on which the message was sent; or
(f) if the message referred to in paragraph (d) was sent by post—
the day on which service of the message was effected (see
section 29 of the Acts Interpretation Act 1901); or
(g) in any other case—the day on which the message was
delivered.
(2) For the purposes of subclause (1), a business day is a day that is
not a Saturday, a Sunday or a public holiday in:
(a) if the message referred to in paragraph (1)(d) is an electronic
message—the place to which the message was sent; or
(b) if the message referred to in paragraph (1)(d) was sent by
post—the place to which the message was sent; or
(c) in any other case—the place where the message was
delivered.
Spam Act 2003 43

Schedule 3 Infringement notices
Clause 1
Schedule 3—Infringement notices

1 Object
The object of this Schedule is to set up a system of infringement
notices for contraventions of civil penalty provisions as an
alternative to the institution of proceedings in the Federal Court.
2 Definitions
In this Schedule:
authorised person means:
(a) the Chair of the ACMA; or
(b) a member of the staff of the ACMA appointed under
clause 9.
civil contravention means a contravention of a civil penalty
provision.
infringement notice means an infringement notice under clause 3.
3 When an infringement notice can be given

(1) If an authorised person has reasonable grounds to believe that a
person has, on a particular day, committed one or more
contraventions of a particular civil penalty provision, the
authorised person may give to the person an infringement notice
relating to those contraventions.
(2) An infringement notice must be given within 12 months after the
day on which the civil contraventions are alleged to have taken
place.
(3) This clause does not authorise the giving of 2 or more infringement
notices to a person in relation to contraventions of a particular civil
penalty provision that allegedly occurred on the same day.
44 Spam Act 2003

Infringement notices Schedule 3
Clause 4
4 Matters to be included in an infringement notice

(1) An infringement notice must:
(a) set out the name of the person to whom the notice is given;
and
(b) set out the name of the authorised person who gave the
notice; and
(c) either:
(i) set out brief details of each of the alleged civil
contraventions; or
(ii) be accompanied by one or more data processing devices
that contain, in electronic form, brief details of each of
the alleged civil contraventions; and
(d) contain a statement to the effect that the matter or matters
will not be dealt with by the Federal Court if the penalty
specified in the notice is paid to the ACMA, on behalf of the
Commonwealth, within:
(i) 28 days after the notice is given; or
(ii) if the ACMA allows a longer period—that longer
period; and
(e) give an explanation of how payment of the penalty is to be
made; and
(f) set out such other matters (if any) as are specified by the
regulations.
Note: For the amount of penalty, see clause 5.
(2) For the purposes of paragraph (1)(c), the brief details must include
the following information in relation to each alleged civil
contravention:
(a) the date of the alleged contravention;
(b) the civil penalty provision that was allegedly contravened.
(3) Subparagraph (1)(c)(ii) does not authorise the inclusion of
information in a data processing device unless, at the time the
infringement notice was given, it was reasonable to expect that the
information would be readily accessible so as to be useable for
subsequent reference.
(4) This clause does not limit the operation of the Electronic
Transactions Act 1999.
Spam Act 2003 45

Clause 5
5 Amount of penalty
Infringement notice given to a body corporate

(1) The penalty to be specified in an infringement notice given to a
body corporate must be a pecuniary penalty equal to the number of
penalty units worked out using the table:
Number of penalty units

Item In this case... the number of penalty units is...
1 the notice relates to a single alleged 20
contravention of subsection 16(1),
(6) or (9)
2 the notice relates to more than 1, but the number obtained by multiplying
fewer than 50, alleged 20 by the number of alleged
contraventions of subsection 16(1), contraventions
(6) or (9)
3 the notice relates to 50 or more 1,000
alleged contraventions of subsection
16(1), (6) or (9)
contravention of a civil penalty
provision other than subsection
16(1), (6) or (9)
contraventions of a civil penalty contraventions
16(1), (6) or (9)
6 the notice relates to 50 or more 500
alleged contraventions of a civil
penalty provision other than
subsection 16(1), (6) or (9)
Infringement notice given to a person other than a body corporate

(2) The penalty to be specified in an infringement notice given to a
person other than a body corporate must be a pecuniary penalty
equal to the number of penalty units worked out using the table:
46 Spam Act 2003

Clause 6
Number of penalty units

Item In this case... the number of penalty units is...
contravention of subsection 16(1),
(6) or (9)
contraventions of subsection 16(1), contraventions
(6) or (9)
alleged contraventions of subsection
16(1), (6) or (9)
contravention of a civil penalty
16(1), (6) or (9)
contraventions of a civil penalty contraventions
16(1), (6) or (9)
alleged contraventions of a civil
penalty provision other than
subsection 16(1), (6) or (9)
6 Withdrawal of an infringement notice

(1) This clause applies if an infringement notice is given to a person.
(2) An authorised person may, by written notice (the withdrawal
notice) given to the person, withdraw the infringement notice.
(3) To be effective, the withdrawal notice must be given to the person
within 28 days after the infringement notice was given.
Refund of penalty if infringement notice withdrawn

(4) If:
(a) the penalty specified in the infringement notice is paid; and
(b) the infringement notice is withdrawn after the penalty is paid;
Spam Act 2003 47

Clause 7
the Commonwealth is liable to refund the penalty.
7 What happens if the penalty is paid

(1) This clause applies if:
(a) an infringement notice relating to one or more alleged civil
contraventions is given to a person; and
(b) the penalty is paid in accordance with the infringement
notice; and
(c) the infringement notice is not withdrawn.
(2) Any liability of the person for the alleged civil contraventions is
discharged.
(3) Proceedings under Part 4 may not be brought against the person for
the alleged civil contraventions.
8 Effect of this Schedule on civil proceedings

This Schedule does not:
(a) require an infringement notice to be given in relation to an
alleged civil contravention; or
(b) affect the liability of a person to have proceedings under
Part 4 brought against the person for an alleged civil
contravention if:
(i) the person does not comply with an infringement notice
relating to the contravention; or
(ii) an infringement notice relating to the contravention is
not given to the person; or
(iii) an infringement notice relating to the contravention is
given to the person and subsequently withdrawn; or
(c) limit the Federal Court’s discretion to determine the amount
of a penalty to be imposed on a person who is found in
proceedings under Part 4 to have committed a civil
contravention.
9 Appointment of authorised person

The ACMA may, by writing, appoint a member of the staff of the
ACMA as an authorised person for the purposes of this Schedule.
48 Spam Act 2003

Clause 10
10 Regulations
The regulations may make further provision in relation to
infringement notices.
Spam Act 2003 49

Notes to the Spam Act 2003
Table of Acts

Note 1
The Spam Act 2003 as shown in this compilation comprises Act No. 129, 2003
amended as indicated in the Tables below.
For application, saving or transitional provisions made by the Australian
Communications and Media Authority (Consequential and Transitional
Provisions) Act 2005, see Act No. 45, 2005.
Table of Acts
Act Number Date Date of Application,

and year of Assent commencement saving or
transitional
provisions
Spam Act 2003 129, 2003 12 Dec 2003 Ss. 15–41, 43–46,
Schedules 1 and
3: 10 Apr 2004
Remainder: Royal
Assent
Australian Communications 45, 2005 1 Apr 2005 Schedule 1 Sch. 4
and Media Authority (items 121–123)
(Consequential and and Schedule 4:
Transitional Provisions) 1 July 2005 (a)
Act 2005 Schedule 2: (a)
Spam Act 2003 51

Act Notes
(a) Subsection 2(1) (items 2, 3 and 10) of the Australian Communications and Media Authority
(Consequential and Transitional Provisions) Act 2005 provide as follows:
(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.
2. Schedule 1 At the same time as section 6 of the Australian 1 July 2005

Communications and Media Authority Act 2005
commences.
3. Schedule 2 Immediately after the commencement of the 1 July 2005
provision(s) covered by table item 2.
10. Schedule 4 At the same time as section 6 of the Australian 1 July 2005
Communications and Media Authority Act 2005
commences.
52 Spam Act 2003

Table of Amendments
Table of Amendments
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
Provision affected How affected
Part 1
S. 4 ............................................. am. No. 45, 2005
Part 4
S. 26 ........................................... am. No. 45, 2005
Ss. 28, 29 ................................... am. No. 45, 2005
Part 5
S. 32 ........................................... am. No. 45, 2005
Part 6
Ss. 37–39 ................................... am. No. 45, 2005
Part 7
S. 41 ........................................... am. No. 45, 2005
Heading to s. 42 ......................... am. No. 45, 2005
S. 42 ........................................... am. No. 45, 2005
Schedule 3
C. 2 .......................................... am. No. 45, 2005
C. 4 .......................................... am. No. 45, 2005
C. 9 .......................................... am. No. 45, 2005
Spam Act 2003 53

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Spam Act 2003: Act No. 129 of 2003 As Amended

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Spam Act 2003

Act No. 129 of 2003 as amended

This compilation was prepared on 1 July 2005

The text of any of those amendments not in force

The operation of amendments that have been incorporated may be

Prepared by the Office of Legislative Drafting and Publishing,

Part 2—Rules about sending commercial electronic messages 13

Part 3—Rules about address-harvesting software and

Part 4—Civil penalties 23

Spam Act 2003 iii

Part 6—Enforceable undertakings 32

Schedule 1—Designated commercial electronic

iv Spam Act 2003

Schedule 3—Infringement notices 44

Spam Act 2003 v

Spam Act 2003 1

(2) Column 3 of the table contains additional information that is not

• This Act sets up a scheme for regulating commercial e-mail

• Unsolicited commercial electronic messages must not be sent.

• Commercial electronic messages must include information

• Commercial electronic messages must contain a functional

• Address-harvesting software must not be supplied, acquired or

• An electronic address list produced using address-harvesting

2 Spam Act 2003

Note: The Telecommunications Act 1997 contains additional provisions

Spam Act 2003 3

business includes a venture or concern in trade or commerce,

4 Spam Act 2003

Spam Act 2003 5

investment means any mode of application of money or other

6 Spam Act 2003

registered political party means a political party, or a branch or

Spam Act 2003 7

(a) a voice call within the ordinary meaning of that expression;

(2) For the purposes of subsection (1), it is immaterial whether the

Excluded messages—voice calls

8 Spam Act 2003

6 Commercial electronic messages

Spam Act 2003 9

(3) For the purposes of paragraphs (1)(d) to (l), it is immaterial

10 Spam Act 2003

(b) the individual or organisation who sent the message, or

8 Authorising the sending of electronic messages

Attribution of authorisation to organisation

Spam Act 2003 11

the first-mentioned individual or organisation is taken to authorise

9 Sending of electronic messages—carriage service providers

11 Extended meaning of use

13 Extension to external Territories

12 Spam Act 2003

Part 2—Rules about sending commercial electronic

• Unsolicited commercial electronic messages must not be sent.

• Commercial electronic messages must include information

• Commercial electronic messages must contain a functional

16 Unsolicited commercial electronic messages must not be sent

(2) Subsection (1) does not apply if the relevant electronic

(3) Subsection (1) does not apply if the person:

Spam Act 2003 13