STATUTORY INTERPRETATION

Telecommunications, Spam and Social Media Act 2018 (Cth.)

Question 1.
PRELIMINARY ANALYSIS OF THE STATUTE
 Threshold questions
 Constitutional validity:
The legislation is written as Commonwealth legislation and involves establishment of
various rules and regulations so that the telecommunications and messaging services could be
regulated in a systematic and coherent way for the public welfare. A lot of reports of public
being harassed unnecessarily by the unauthorised promotional messages and spams have
prompted the Government to take this step. The Act has been put to force so as to protect the
public from illegal or unsanctioned communications via social media platforms,
telecommunications, electronic messaging and other relative purposes. Further, the Act also
establishes platform to report and redress grievances of the people who have been enticed or
duped in to entering contracts without proper and adequate disclosure about the terms and
conditions of the contract.
According to the Constitution, it is the implied duty of the Government to protect the citizens
from any untoward harm and has the power to make laws for peace, order and good
governance. Since, this Act has been put to force to protect people’s interest , it is quite clear
that the provisions of the Act are consistent with the scheme of the Constitution. Hence, the
Act is constitutionally valid.

 Jurisdiction and commencement of the Act:

The Telecommunications, Spam and Social Media Act 2018 (hereinafter, referred to as “the
Act”) is enacted along the lines of the Spam Act 2003. It is still to commence. However, the Act
could provide a major light to the cases of the clients. Further, it needs to be mentioned that
the exact locations of the alleged offences have not been described in the facts of the
respective cases. However, S. 15C of the Acts Interpretation Act (Cth) 1901 (AIA) allows implied
jurisdiction[ CITATION Aus184 \l 16393 ] . Moreover, it has been expressly mentioned in S.5 of the
Act that the same binds the crown. Therefore, it is within the scope of the Australian Courts to
try these cases. Also, it is clear with the intention of the Act to establish a framework for the
protection of people against the spams and other unsolicited messages, it is implied that the
three parties are within the jurisdiction of the Commonwealth of Australia.
 Classification of statute
The Act could be classified as public law since, it has elements of administrative as well as penal
laws. Further, the Act could be deemed as a general law since, it has been enacted for the
welfare of the public and protecting their interests and privacy.
Furthermore, as regards to its time frame, since, the time limit for the Act has not been
signified in any express way in the statute, the Act could be deemed as a perpetual Act and
could not cease to remain in force, till repealed.
It is a mandatory statute which compels parties not to send unsolicited and unlawful messages
to the customers for one purpose or the other. It could also been seen in the category of
directory statutes since, it directs the ombudsman to look after various infringements of the
Act. [ CITATION JUS16 \l 16393 ]
The Act is also a prohibitory statute as it prohibits the parties from sending messages and spam.

 Identification of the operative provisions

Section 20 of the Act contains the prohibitive provision that a person or entity must not engage
in, promote, or communicate that they are a lawful telecommunications or social media
provider when they are not entitled to.
Section 21 (a) of the Act creates offence for enticing an individual to enter into a contract
without fully disclosing the terms and conditions of the contract, whereas S. 21 (b) creates the
offence of communicating with the customer through electronic means, without providing an
option to “opt out” of such subscription or reception of those messages.
Machinery Provision:
The Act also confers the power to bring an action against a delinquent party before the Federal
Court of Australia. Further, the Telecommunications Ombudsman is also authorised to revoke
the registration of any company which acts in contravention of the provisions of the Act.
[ CITATION JUS16 \l 16393 ]
 Purpose of the Act

Purpose described through the intrinsic provisions provided in the statute.

It is quite evident from the long title and the statement of objects and reasons of the Act as to
what is the major purpose behind this legislation. The long title provides that the Act is “An Act
to protect the public from unlawful or unauthorised communications via telecommunications,
electronic messaging, and social media and for other related purposes.” Hence, the benevolent
purpose of public protection has been set as a benchmark objective for the Act. [ CITATION
JUS16 \l 16393 ]

In addition to that, there are three objectives expressly enlisted in the S.3 of the Act. These
could be summarised as:
 Establishment of a system to regulate the use of telecommunications and messaging
services.
 Ensuring that unlawful telecom providers do not harass the public and harm public’s
interests.
 Providing a forum for the people to complain against any delinquent service provides who
are in the business of enticing people into contract without making adequate disclosures
and which also do not provide any option to opt out of subscription of such mails and
communications.
Before proceeding to other parts of the Act which describe the purpose, it is expedient to
consider the golden rule as stipulated in the case Grey v Pearson (1857). The expression was
related to few errors in the usage of words in the Act. [ CITATION STA11 \l 16393 ] The observation
by the House of Lords provides that if any kind of absurdity arises while following the meaning
actual words, then, the same could be avoided by modifying the meaning of those words, but
only to the extent, that the absurdity gets removed and the intention as well as the meaning of
the words is made perfectly clear.
Further, it could be seen that Part 2 of the Act talks about Civil and Criminal penalties. Basically,
this part actually prohibits various acts committed by unlawful telecommunications service
providers. Even the lawful and registered telecom service providers are also not allowed to
engage in unlawful activities such as sending unsolicited messages, enticing people into
contract without proper disclosure and not giving option to unsubscribe from such
communications.
It could also be seen that the penal provisions contain big punishments such as 2 years
imprisonment. Section 21 creates the offence provision in relation to promotional
activities done by unregistered and unlawful communications service provider. It also states
that the maximum penalty to be 1000penalty units. Further, the registration or license of such
telecom service providers could also be revoked and an enquiry could be set up against them,
and they could be tried in the Court of Law[CITATION STA11 \l 16393 ].
It is imperative to mention, in light of the discussion above, according to Acts Interpretation Act
1901 (Cth), while the offences contain the word ‘must’, impose a duty on a person or agency,
the actual enforcements only use the word ‘may’, which states that ‘the act or thing may be
done at the discretion of the person, court or body’ [ CITATION Aus184 \l 16393 ] . Carr v Western
Australia provides that in working out dominant purposes in legislation, an examination of
the resources allocated to achieving the purposes of the legislation and upholding its
objectives should be carried out[ CITATION BAR18 \l 16393 ].
In the present context, the objects of the Act provide for establishing a system to check and
redress and unsolicited communication from the telecom service providers and to further
regulate their relative activities.
Since, only an excerpt of the Act is provided, it is worth mentioning that the Statute also allows
the establishment of a Statutory Authority. The Telecommunications Ombudsman has been
created to look in to the grievances of the public related to such unsolicited communications.
The Ombudsman has also been authorised to revoke the license of these service providers and
also to bring an action against such delinquent parties in the Federal Court of Australia.
Furthermore, various enforcement provisions have been provided which confer certain
discretionary powers to enforce the penalties which are expressed as consequences of
committing the offences mentioned under S.21 of the Act.

Purpose described through extrinsic aids

The Second Reading Speech states that Telecommunications Ombudsman will be given such
powers to guarantee the populace likely to be affected remain secured and educated. Helpless
individuals, unknowingly, have been entering into various contracts and being exposed to debt
collectors because of the unpaid high charges from the suppliers. Criminal arraignment is
incorporated to guarantee that if a supplier neglects to reveal all important data to clients, the
same will be liable for prosecution. It was also put on record that the barrage on messages has
not been much effective, and the public is demanding an "opt-out" option to such
subscriptions.
Talking about the Explanatory Notes, then the same actually, do not provide any different
emphasis from the intrinsic parts and there are only few clarification given in the explanation
part. [ CITATION BAR18 \l 16393 ]

Context of the Act

It has been expressed in the S. 15AA of the Acts Interpretation Act 1901, provides that the
interpretation of an Act or any statute requires that the interpretation that best achieves
the purpose or object of the Act, whether expressed or not, is to be preferred to all other
interpretations.[ CITATION Aus184 \l 16393 ]
In the immediate situation, it means that when the interpretation of the statute is done, then,
meaning of the words and context could be taken in to consideration with regards to other
parts of the Act.
In the case of Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (the
Engineers’ Case) (1920) before the Hon’ble High Court, Higgin J. explained the “Literal rule” as
that, a simple reading of the statute could describe the actual intention of the legislature
behind enacting that particular legislation. The same has been provided in the discussion of the
Intrinsic Aids above. [CITATION STA11 \l 16393 ]
Looking at a broader perspective, the long title of the Act comes handy for explanation. The Act
seeks to protect the public from unlawful and unsolicited telecom service providers. Further,
the State endeavours to promote security and transparency in the telecommunications sector,
so that the public interests’ are kept safe and also enable the Government to apprehend
unlawful telecom operators and the related business partners.
If we are to summarize, then, the purpose and the context of the Act could be related to
maintaining and protecting public trust and security, and for the Government to weed out any
aberrant business operators and apprehend them according to the law.

 APPLYING THE APPROACHES OF STATUTORY INTERPRETATION

 Modern approach to statutory interpretation
S.15AA (1) of The Acts Interpretation Act 1901(Cth) Section 15AA (1) aptly describes the
interpretation of the statute using the modern approach. The Act states that:
“In the interpretation of a provision of an Act, a construction that would promote the purpose or
object underlying the Act (whether the purpose or object is expressly stated in the Act or not)
shall be preferred to a construction that would not promote that purpose or object.” [ CITATION
Aus184 \l 16393 ]

The explanation of the above would be a repetition of the same aspects discussed above,
hence, it is expedient to move towards the analysis of the operative provisions.

 Analysis of the operative provisions: Intrinsic Aids

Sections 20, 21 are the operative provisions in the Act. S.22 of the Act provides for enforcement
powers to the TO, in cases of failure of compliance.
Taking note of the elements of S.20, these could be enlisted as:
 A person or entity
 Must not engage in to promote or communicate

Registered lawful charity

4. when they are not entitled to
 Being a lawful telecommunications service provider
 When, not entitled

Essentials of S.21 (a):

 A person or entity
 Unlawfully entice individuals to enter into a contract
 Without disclosing all the terms and conditions for the contract
 Failure to comply may result in imprisonment up to 2 years

Essentials of S.21 (b):

 Electronic communications for commercial purpose
 No option to opt out for the recipient
 Above act will be deemed unlawful
 TO could exercise remedial powers under S.22 of the Act

Now, a “person or entity”, means that the Act is including all “legal persons”. Legal Person is the
one which has its own identity in the Court of Law and it could be a natural person or any
organisation as well. For instance, in the given case facts, Lucy is a person, whereas Fantastic
Food Café is an entity.
“Entice” according to the Merriam Webster’s means to “attract artfully or adroitly or by
arousing hope or desire”.
“Must not engage” means that the party must not have taken any step in the direction which is
considered unlawful under the precincts of the Act.
“Lawful telecommunications service provider” and “not entitled”- To interpret the same,
“generalia specialibus non derogant” could be employed. [ CITATION STA11 \l 16393 ]

 Extension of the analysis of the operative provisions: Extrinsic Aids

S. 14B of the Acts Interpretation Act 1901 (Cth) states that a dictionary could be used to
confirm the literal meaning for the words that are not defined within the legislation.
The same was used in the case of State Chamber of Commerce and Industry v Commonwealth
(1987).[ CITATION JUS16 \l 16393 ]
Since, the definition of “unlawful” has not been provided in the legislation, the “lawful
provider” has surely been defined in the S. 4.4 of the Act. Hence, it should not be difficult to
construe the meaning of unlawful from the same. However, the term, “unlawful” has been
defined in the Merriam Webster’s as “not lawful” or “not morally right or conventional”.
The best part of the modern approach is that in case any ambiguity as against the meaning of
any word arises, it enables the Court to interpret the statute in a way which could benefit the
client or the party which is inherently as a disadvantage. The same practice is prevalent in cases
of standard form contracts. [ CITATION BAR18 \l 16393 ]

CONCLUSION
Hence, it is clear from the above discussions that the Telecommunications, Spam and Social
Media Act 2018 is a legislation passed for the protection of public from various spams and
unlawful solicitations done by unlawful telecom service providers. The interpretation of the
statute could easily be done by using the modern approach.

Cases:
 Lucy and Fantastic Food Café
Issue: Whether Lucy enticed the customer into any contract and has committed any offence
under S.21 of the Act?
Going by the facts of the case, I believe that Lucy is not liable for paying any penalties or she is
not in contravention of the law. The law remains silent on the mediator parties’ liabilities and
responsibilities. Even if the law is to be interpreted in the favour of the complainant, then,
service providers such as Facebook and Instagram would be deemed liable, since, it is their
platform which is used by Lucy as well as the complainant. Hence, in my view, Lucy is not at all
liable.
However, I would suggest Lucy to be proactive entrepreneurs and send a written
acknowledgement to the complainant as well as the TO and explain the situation. Further, she
should send a request to the Facebook and Instagram management to look over the issue and
try to put an “opt-out” option.

 Billie and Promote Your Photo

Issue: Whether Mr Dodgy has committed any offence under S. 21 (a) of the Act?
In my view, Billie has a clear and strong case against Mr Dodgy, since the latter is an
unregistered service provider. Further, he enticed Billie to sign up with the app and post his
genuine photos on the app with a promise of significant increase in the view. Further, it is not
clear if proper and whole disclosure was done as against the terms and condition of the
contract. In addition to that, Mr Dodgy has not replied to any queries of Billie. Hence, Billie
could report Mr Dodgy to the Telecommunications Ombudsman and can also sue Mr Dodgy for
breaching the terms of the contract, if there was any.

 Ronnie and Phone Right

Issue 1: Whether Phone Right were entitled to communicate with Ronnie?
Issue 2: Whether Ronnie was enticed to enter into a contract?
As per my view, Ronnie would not be able to get any remedy under this Act. First, Phone Right
is a registered and a reputed telecom service provider. Hence, S.20 of the Act does not hold.
Further, as per the language of the statute, to make a case under S. 21 (a) of the Act, a person
must be “enticed” to enter into a contract. In this particular case, Ronnie himself entered the
contract and it was his responsibility to check the terms and conditions of the contract. It was
negligence on the part of Ronnie. Hence, he was not enticed and no case could be made against
Phone Right.
Although, a case could be made against Phone Right for not providing an option for “opting
out”. However, subsequently it would be defeated with a contention that Ronnie did not
exercise the option, since he was not at all aware of the transactions, till the time his card got
declined. Hence, negligence could be ascribed on the part of Ronnie.

Question 2
AMENDMENT OF THE ACT

The definition of “social media provider” must definitely be given a wider scope so as to include
all social online platforms, since, in the current scenario, almost everything important in our
lives has come up online and that increases the chances of being duped or our security being
compromised. However, any such suggestion for enlarging the scope of the definition must be
brought before the Government by the Telecommunications Ombudsman, since, he is the one
who would know any intricacies, loopholes and difficulties found in the interpretation of the
term.
The Minister assigned to this portfolio will proceed with the amendment proposal, if it is
necessary and is in line with the Government’s agenda. Further, policy approval would be
needed depending on the type of alteration needed. [ CITATION Com17 \l 16393 ]
In the cases of “technical correction (change of single word)”, the approval could be given by
First Parliamentary Counsel and the bill will proceed as “Statute Law Revision Bill”. However,
ministers could be consulted if policy implications arise and then only, the Bill is sent for PM’s
assent so as to present the same in next parliamentary session. Thereafter, a draft Bill is
released to get public reaction. [ CITATION Bri18 \l 16393 ] After the same is recognised, the
Government does necessary changes. Then, the Bill goes through First and Second Reading
through the Minister responsible for the portfolio. The Minister, then, presents the Explanatory
Memorandum and his Second Reading Speech. Thereafter, the debate is conducted, if
necessary. Finally, the members vote on Third Reading as final draft. [ CITATION Com17 \l 16393 ]
If passed by the House of Representatives, the Bill is forwarded to the Senate for its assent. The
Senate too, follows the procedure of the Readings and thereafter vote the bill during the final
Reading. Once, both the Houses assent for the Bill in identical form, the same is presented to
the Governor, who gives Royal Assent by signing it. Once signed, the Bill becomes an Act in
Australia.[ CITATION Com18 \l 16393 ][ CITATION Com17 \l 16393 ]

Bibliography
Australia, C. o., 2017. Legislation Handbook, Canberra: Government of Australia.

Australia, C. o., 2018. AUSTRALIA’S CONSTITUTION. 11th ed. Canberra: Government of Australia.

BARNES, J., 2018. CONTEXTUALISM: ‘THE MODERN APPROACH TO STATUTORY INTERPRETATION. UNSW
LAW JOURNAL, 41(4), pp. 1083-1114.

Brian Simpson, C. H. ,. R. C. A. M., 2018. Learning Law, Port Melbourne: Cambridge University Press.

CMG, T. H. M. K. A., 2011. STATUTORY INTERPRETATION: THE MEANING OF MEANING. Melbourne

University Law Review, 35(1).

Government, A., 2018. Federal Register of Legislation. [Online]

Available at: https://www.legislation.gov.au/Details/C2016C00691
[Accessed 24 October 2019].

MIDDLETON, J. J., 2016. STATUTORY INTERPRETATION: MOSTLY COMMON SENSE. MELBOURNE

UNIVERSITY LAW REVIEW, 40(2), pp. 626-697.