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Broadcasting Services Amendment (Online Services) Bill 1999

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1999

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

THE SENATE

 

 

 

 

 

 

 

 

 

 

 

BROADCASTING SERVICES AMENDMENT

(ONLINE SERVICES) BILL 1999

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

 

Amendments to be moved on behalf of the Government

 

 

 

 

 

 

 

 

 

(Circulated by authority of Senator the Hon. Richard Alston, Minister for Communications, Information Technology and the Arts)

 

 



 

BROADCASTING SERVICES AMENDMENT

(ONLINE SERVICES) BILL 1999

 

 

OUTLINE

 

The Broadcasting Services Amendment (Online Services) Bill 1999 (the Bill) amends the Broadcasting Services Act 1992 (BSA) to provide for the regulation of online services.  Schedule 2 to the Bill makes a consequential amendment to the Crimes Act 1914 .

 

The proposed Government Amendments make amendments to the Bill to address issues that have arisen about its operation primarily as a result of the recent inquiry of the Senate Select Committee on Information Technologies.

 

In particular, the proposed Government Amendments:



·         clarify the wording of proposed subsection 4(3) of the BSA, which provides for the manner in which Parliament intends Internet content hosted in Australia, and Internet carriage services supplied to end-users in Australia, to be regulated (Amendments (1) to (4));



·       explain the context of the proposed regulation of online services under the Bill within the proposed Australian scheme for dealing with content on the Internet (Amendment (5));



·       insert a definition of ‘business day’ for the purposes of Amendments (12), (13), (14), (22) and (23) and ensure that Internet content does not include ordinary electronic mail (Amendments (6) to (8));



·       ensure that an ABA instrument declaring a specified access-control system to be a restricted access system in relation to Internet content will be a disallowable instrument, which must accordingly be notified in the Commonwealth Gazette , tabled in the Parliament and will be subject to Parliamentary disallowance (Amendment (9));



·       address concerns that the wording of subclause 20(1) of proposed Schedule 5 to the BSA might imply that an Internet service provider is in some way responsible for the nature of content available on the Internet (Amendment (10));



·       amend the anti-avoidance provisions in clauses 34, 43 and 44 of proposed Schedule 5 to make it clear that ‘similar Internet content’ includes identical Internet content (Amendments (11), (18) and (19));



·       extend the time within which an Internet content host will be required to comply with any interim-take down notice, final take-down notice or special take-down notice that applies to the host, and the time within which an Internet service provider will be required to comply with any access-prevention notice that applies to the provider, from 24 hours to 6 pm on the next business day (Amendments (12), (13), (14), (22) and (23));



·       put beyond doubt that notices in relation to Internet content must identify a particular Internet site or part of such a site (Amendments (15) and (24));



·       clarify that technical and commercial feasibility are particular matters to which regard must be had in determining whether particular steps are reasonable for the purposes of paragraph 37(1)(c) and subclause 44(1) of proposed Schedule 5 to the BSA (Amendments (16) and (20));



·       provide that an Internet service provider is not required to comply with a standard access-prevention notice given under paragraph 37(1)(c), or with a special access-prevention notice given under subclause 44(1), of proposed Schedule 5 to the BSA in relation to a particular end-user if access by the end-user is subject to a recognised alternative access-prevention arrangement (Amendments (17) and (21));



·       allow an industry code or an industry standard to exempt an Internet service provider from taking steps to prevent end-users from accessing prohibited content hosted outside Australia, or content that is substantially similar to such prohibited content, if access is subject to an arrangement that is declared by the code or standard to be a designated alternative access-prevention arrangement (Amendment (25)); and



·       ensure that the ABA cannot make an online provider determination under clause 76 of proposed Schedule 5 to the BSA unless the determination relates to a matter specified in the regulations (Amendment (26)).



 

FINANCIAL IMPACT STATEMENT

 

It is expected that the proposed amendments will not have any significant financial impact on Commonwealth expenditure or revenue.





 

 

NOTES ON AMENDMENTS

 

 

AMENDMENTS (1) TO (4)

 

Amendments (1) to (4) amend proposed subsection 4(3) of the BSA, which provides for the manner in which Parliament intends Internet content hosted in Australia, and Internet carriage services supplied to end-users in Australia, to be regulated.

 

Proposed subsection 4(3) expresses Parliament’s intention in terms of Internet content hosted in Australia, and Internet carriage services supplied to end-users in Australia, being regulated in a manner that, in the opinion of the ABA:

 

·       enables public interest considerations (particularly those relating to offensive or unsuitable Internet content) to be addressed in a way that does not impose unnecessary financial and administrative burdens on Internet content hosts and Internet service providers;



·       will readily accommodate technological change; and



·       encourage the development of Internet technologies and their application and the provision of services made practicable by those technologies to the Australian community.

 

Amendment (1) omits the reference in proposed subsection 4(3) to ‘in the opinion of the ABA’ to ensure that the intention of Parliament is determinable by objective criteria.  Concern has been expressed about the subjective opinion of an administrative body such as the ABA being used to qualify or determine the intention of Parliament.  The omission of the subjective test from subsection 4(3) will also ensure that the meaning of the word ‘reasonable’ in paragraph 37(1)(c) of proposed Schedule 5 to the BSA can be determined by objective means (see subclause 37(2) of proposed Schedule 5 as proposed to be amended by Amendment (16)).

 

Amendment (2) replaces the reference in proposed paragraph 4(3)(a) of the BSA to the imposition of ‘unnecessary’ financial and administrative burdens on Internet content hosts and Internet service providers with a reference to the imposition on them of ‘undue’ financial and administrative burdens.  This will clarify the balance between the public interest in addressing concerns about content issues and the Government’s desire not to impose undue financial or administrative burdens on the industry.

 

Amendment (3) is a technical amendment consequential on Amendment (4). 

 

The effect of Amendment (4) is that Parliament’s intention will include an intention that Internet content hosted in Australia, and Internet carriage services supplied to end-users in Australia, be regulated in a manner that encourages the supply of Internet carriage service services at performance standards that reasonably meet the social, industrial and commercial needs of the Australian community.  An aim of this amendment is to make it clear that the Government does not intend that the regulation of Internet content should result in a degradation of network performance to a point where the Internet no longer meets the needs of the Australian community.

 

 

AMENDMENT (5)

 

Concerns have been raised that the Bill, taken in isolation, creates the impression that Internet service providers and Internet content hosts are to bear the prime burden in relation to offensive material rather than those who create and upload such material.



To address this concern, Amendment (5) inserts a new explanatory statement at the beginning of proposed Schedule 5 to the BSA.  This statement puts the Bill in the context of a national scheme already agreed to by the Commonwealth, State and Territory Attorneys-General.

 

The first component of the proposed scheme is proposed Schedule 5 to the BSA  contained in the Bill as proposed to be amended.  Under this component, the Commonwealth will be responsible for regulating Internet content service providers and Internet content hosts.  This component does not impose any obligations on producers of content on the Internet or persons who upload or access such content.

 

The second component of the proposed scheme is proposed uniform State and Territory laws that will create offences for the publication and transmission of proscribed material by producers of content on the Internet or persons who upload or access such content.  It is intended under the national scheme that the States and Territories will be primarily responsible for regulating the activities of persons who create, upload or access content.

 

The second component of the proposed scheme will also include section 85ZE of the Crimes Act 1914 (Cth) as proposed to be amended by the Bill.  Section 85ZE, as proposed to be amended, will prohibit a person from knowingly or recklessly:

 

(a)        using a carriage service supplied by a carrier to menace or harass another person; or

 

(b)        using a carriage service supplied by a carrier (except where that use is to carry Internet content) in such as way as would be regarded by reasonable persons as being, in all the circumstances, offensive.

 

The third component of the proposed scheme will be a range of non-legislative initiatives directed towards monitoring content on the Internet and educating and advising the public about content on the Internet.   

 

One such initiative is reflected in clause 54 of proposed Schedule 5 to the BSA which provides for the establishment of a designated body.  It is intended that the designated body will be a community based organisation established to monitor material, operate a ‘hotline’ to receive complaints about illegal material and pass this information to the ABA and police authorities, and advise the public about options such as filtering software that are available to address concerns about online content.

 

Another such initiative is reflected in clause 90 of proposed Schedule 5 to the BSA which sets out the ABA’s functions for the purposes of proposed Schedule 5 to the BSA.  These functions are additional functions of the ABA for the purposes of section 159 of the BSA.  The ABA’s additional functions under clause 90 are:

 

·       to monitor compliance with industry codes and standards registered under Part 5 of proposed Schedule 5 to the BSA;



·       to advise and assist parents and responsible adults in relation to the supervision and control of children’s access to Internet content;



·       to conduct and/or co-ordinate community education programs about Internet content and Internet carriage services, in consultation with relevant industry and consumer groups and government agencies;



·       to conduct and/or commission research into issues relating to Internet content and Internet carriage services;



·       to liaise with regulatory and other relevant bodies overseas about co-operative arrangements for the regulation of the Internet industry, including (but not limited to) collaborative arrangements to develop multilateral codes of practice and Internet content labelling technologies;



·       to inform itself and advise the Minister on technological developments and service trends in the Internet industry.

 

 

AMENDMENTS (6) TO (8)

 

Amendment (6) inserts a definition of the term ‘business day’ as a consequence of the use of that term in Amendments (12), (13), (14), (22) and (23).

 

Amendment (7) amends the definition of ‘Internet content’ to ensure that it does not include ordinary electronic mail.  The use of the term ‘ordinary electronic mail’ is intended to make it clear that the exclusion only applies to what an ordinary user of the Internet would regard as being email, and that the exclusion does not apply to other forms of postings of material, such as postings to newsgroups.  The term is also intended to minimise the scope for technical arguments about the ‘outer boundaries’ of the term ‘email’ within the Internet community.  Amendment (8) is intended specifically to make it clear that ordinary electronic mail will not include a posting to a newsgroup.  These amendments are intended to ensure that personal email is not caught by the definition of ‘Internet content’.

 

 

AMENDMENT (9)

 

Amendment (9) addresses a concern raised by the Senate Standing Committee for the Scrutiny of Bills.

 

Under subclause 3(1) of proposed Schedule 5 to the BSA, the ABA will be able to declare by written instrument  that a specified access-control system or a class of such system is a restricted access system in relation to Internet content for the purposes of the Schedule.  A declaration under subclause 3(1) will have effect accordingly.

 

An example of the use of the term ‘restricted access system’ is clause 8 of proposed Schedule 5 to the BSA.

 

In making an instrument under subclause 3(1), the ABA will be required to have regard to the objective of protecting children from exposure to Internet content that is unsuitable for children as well as other relevant matters such as those dealt with in the sections 3 and 4 of the BSA as proposed to be amended (which deal with the objects and regulatory policy of the BSA) (subclause 3(2)).

 

Subclause 3(3) states that a copy of any such instrument must be tabled in Parliament within 15 sitting days after the date on which the instrument was made.  The Senate Standing Committee for the Scrutiny of Bills, in Alert Digest No. 7 of 1999, has noted that no provision seems to have been made for the disallowance of such an instrument. 

 

To address the Committee’s concern, Amendment (9) provides that such an instrument will be a disallowable instrument.  Accordingly, the instrument will be required to be notified in the Commonwealth Gazette , tabled in the Parliament and will be subject to Parliamentary disallowance.

 

 

AMENDMENT (10)

 

Subclause 20(1) of proposed Schedule 5 to the BSA provides that if a person has reason to believe that an Internet service provider is supplying an Internet carriage service that enables end-users to access prohibited content or potential prohibited content, the person will be able to make a complaint to the ABA about the matter.

 

Concern has been expressed that the wording of subclause 20(1) can be read as implying that an Internet service provider is in some way responsible for the nature of content available on the Internet. 

 

To address this concern, Amendment (10) replaces  subclause 20(1) and its heading by a new subclause 20(1) and a new heading.  The new subclause omits the reference to an Internet service provider.  It provides that if a person has reason to believe that end-users in Australia can access prohibited content or potential prohibited content (as defined in clauses 8 and 9 of proposed Schedule 5 to the BSA) using an Internet carriage service, the person may make a complaint to the ABA about the matter.

 

 

AMENDMENT (11)

 

Amendment (11) amends the anti-avoidance provision in clause 34 of proposed Schedule 5 to make it clear that ‘similar Internet content’ includes identical Internet content.  This will address avoidance by moving Internet content without modification.

 

AMENDMENTS (12) TO (14)

 

Subclauses 35(1) to (3) of proposed Schedule 5 to the BSA require an Internet content host to comply with any interim-take down notice, final take-down notice or special take-down notice that applies to the host (see clauses 28 and 34) as soon as practicable, and in any event within 24 hours, after the notice was given to the host.

 

Concern has been expressed that the requirement to take action within 24 hours may in effect require Internet content hosts to be on call 7 days per week, 365 days per year.

 

Amendments (12) to (14) amend subclauses 35(1) to (3) to address this concern.  As a result of these amendments, an Internet content host will be required to comply with any interim-take down notice, final take-down notice or special take-down notice that applies to the host as soon as practicable, and in any event by 6 pm on the next business day, after the notice was given to the host.  As a result of Amendment (6), the term ‘business day’ will be defined in clause 2 of proposed Schedule 5 to the BSA to mean a day that is not a Saturday, a Sunday or a public holiday in the place concerned.

 

 

AMENDMENT (15)

 

Clause 36 of proposed Schedule 5 to the BSA provides that Internet content may be identified in a notice under Division 3 of Part 4 of Schedule 5 (which deals with action to be taken in relation to a complaint about prohibited content hosted in Australia) by setting out the content, describing the content, or in any other way.

 

For the purposes of greater clarity, Amendment (15) inserts a new clause 36A to put beyond doubt that notices under Division 3 should identify a particular Internet site or a distinct part of such a site.

 

 

AMENDMENT (16)

 

Amendment (16) is intended to put it beyond doubt that technical and commercial feasibility are particular matters to which regard must be had in determining whether particular steps are reasonable for the purposes of paragraph 37(1)(c) of proposed Schedule 5 to the BSA.

 

 

AMENDMENT (17)

 

Amendment (17) addresses a further concern about the operation of paragraph 37(1)(c).  This concern is that there will be many users, including schools and major businesses, that will already have their own blocking technologies in place such as firewalls and filtering software.  It has been argued that it would be inefficient to be ‘double filtering’ such material by also requiring Internet service providers to filter all requests coming from such users and that the processing overheads from filtering requirements could be reduced significantly if such users could be exempted from the filtering requirements.

 

To address this concern, Amendment (17) inserts new subclauses 37(3A) to (3D) of proposed Schedule 5 to the BSA.

 

New subclause 37(3A) provides that an Internet service provider will not be required to comply with a standard-access prevention notice under paragraph 37(1)(c) in relation to a particular end-user of Internet content if access by the end-user is subject to a recognised alternative access-prevention arrangement that is applicable to the end-user.

 

New subclause 37(3B) defines the term ‘recognised alternative access-prevention arrangement’.  The ABA will be able, by written instrument, to declare that a specified arrangement or a specified class of arrangement is a recognised alternative access-prevention arrangement for the purposes of the application of Division 4 of Part 4 of proposed Schedule 5 to the BSA (which deals with action to be taken in relation to a complaint about prohibited content hosted outside Australia) to one or more specified end-users.  The ABA will be able to do so if it is satisfied that the arrangement is likely to provide a reasonably effective means of preventing access by those end-users to prohibited content (as defined by clause 8) and potential prohibited content (as defined by clause 9).

 

New subclause 37(3C) provides examples of arrangements that could be declared to be recognised alternative access-prevention arrangements under subclause 37(3B).  These include an arrangement that involves the use of regularly updated Internet content filtering software and an arrangement that involves the use of a ‘family-friendly’ filtered Internet carriage service.  These examples are not intended to be exhaustive.

 

New subclause 37(3D) provides that the ABA’s instrument declaring that a specified arrangement or specified class of arrangement is a recognised alternative access-prevention arrangement under subclause 37(3B) will be a disallowable instrument.  The instrument must accordingly be notified in the Commonwealth Gazette , tabled in the Parliament and will be subject to Parliamentary disallowance.

 

AMENDMENTS (18) AND (19)

 

Amendments (18) and (19) amends the anti-avoidance provision in clauses 43 and 44 of proposed Schedule 5 to make it clear that ‘similar Internet content’ includes identical Internet content.  This will address avoidance by moving Internet content without modification.

 

 

AMENDMENTS (20) AND (21)

 

Amendment (20) provides that technical and commercial feasibility are additional matters to which regard must be had in determining whether particular steps are reasonable for the purposes of subclause 44(1) of proposed Schedule 5 to the BSA.

 

Subclause 44(1) of proposed Schedule 5 to the BSA, as currently drafted in the Bill, provides that if:

 

·       a standard access-prevention notice (see paragraph 37(1)(c)) relating to particular Internet content is applicable to a particular Internet service provider; and



·       the ABA is satisfied that the provider is supplying an Internet carriage service that enables end-users to access Internet content that is substantially similar to the Internet content identified in the standard access-prevention notice; and



·       the ABA is satisfied that the similar Internet content is prohibited content or potential prohibited content;

 

the ABA will be able to give the provider a written notice known as a special access-prevention notice directing the provider to take all reasonable steps to prevent end-users from accessing the similar Internet content at any time when the standard access-prevention notice is in force. 

 

In determining whether particular steps are reasonable for the purposes of subclause 44(1), regard will be required to be had to the matters set out in the statement of Parliamentary intention in proposed subsection 4(3) of the BSA (see item 4 of Schedule 1 to the Bill as proposed to be amended by Amendments (1) to (4)) and such other matters as are relevant (subclauses 44(2) and (3)).

 

Amendment (21) addresses a further concern about the operation of subclause 44(1).  This concern is that there will be many users, including schools and major businesses, that will already have their own blocking technologies in place such as firewalls and filtering software.  It has been argued that it would be inefficient to be ‘double filtering’ such material by also requiring Internet service providers to filter all requests coming from such users and that the processing overheads from filtering requirements could be reduced significantly if such users could be exempted from the filtering requirements.

 

To address this concern, Amendment (21) inserts  a new subclause 44(4) of proposed Schedule 5 to the BSA.  This provides that an Internet service provider will not be required to comply with a special-access prevention notice under subclause 44(1) in relation to a particular end-user of Internet content if access by the end-user is subject to a recognised alternative access-prevention arrangement that is applicable to the end-user.

 

New subclause 37(3B), to be inserted by Amendment (17), defines the term ‘recognised alternative access-prevention arrangement’.  The ABA will be able, by written instrument, to declare that a specified arrangement or a specified class of arrangement is a recognised alternative access-prevention arrangement for the purposes of the application of Division 4 of Part 4 of proposed Schedule 5 to the BSA (which deals with action to be taken in relation to a complaint about prohibited content hosted outside Australia) to one or more specified end-users.  The ABA will be able to do so if it is satisfied that the arrangement is likely to provide a reasonably effective means of preventing access by those end-users to prohibited content (as defined by clause 8) and potential prohibited content (as defined by clause 9).

 

New subclause 37(3C) provides examples of arrangements that could be declared to be recognised alternative access-prevention arrangements under subclause 37(3B).  These include an arrangement that involves the use of regularly updated Internet content filtering software and an arrangement that involves the use of a ‘family-friendly’ filtered Internet carriage service.  These examples are not intended to be exhaustive.

 

 

AMENDMENTS (22) AND (23)

 

Subclauses 45(1) and (2) of proposed Schedule 5 to the BSA require an Internet service provider to comply with a standard access-prevention notice (see paragraph 37(1)(c)) or a special access-prevention notice (see clause 44) that applies to the provider as soon as practicable, and in any event within 24 hours, after the notice was given to the provider.

 

Concern has been expressed that the requirement to take action within 24 hours may in effect require Internet content providers to be on call 7 days per week, 365 days per year.

 

Amendments (22) and (23) amend subclauses 45(1) and (2) to address this concern.  As a result of these amendments, an Internet content provider will be required to comply with any standard or special access-prevention notice that applies to the provider as soon as practicable, and in any event by 6 pm on the next business day, after the notice was given to the provider.  As a result of Amendment (6), the term ‘business day’ will be defined in clause 2 of proposed Schedule 5 to the BSA to mean a day that is not a Saturday, a Sunday or a public holiday in the place concerned.

 

 

AMENDMENT (24)

 

Clause 46 of proposed Schedule 5 to the BSA provides that Internet content may be identified in a notice under Division 4 of Part 4 of Schedule 5 (which deals with action to be taken in relation to a complaint about prohibited content hosted outside Australia) by setting out the content, describing the content, or in any other way.

 

For the purposes of greater clarity, Amendment (24) inserts a new clause 46A to put beyond doubt that notifications under Division 4 (see paragraphs 37(1)(b) and (c)) should identify a particular Internet site or a distinct part of such a site.

 

 

AMENDMENT (25)

 

Clause 56 of proposed Schedule 5 to the BSA provides that it is the intention of the Parliament that for both the Internet service provider and Internet content host sections of the Internet industry, there should be an industry code or an industry standard that deals with or an industry code and an industry standard that together deal with the specified matters.  These matters include procedures directed towards the achievement of the objective of ensuring that customers have the option of subscribing to a filtered Internet carriage service.

 

Subclause 56(2) provides that it is the intention of the Parliament that, for the Internet service provider section of the Internet industry, there should be an industry code or an industry standard that deals with or an industry code and an industry standard that together deal with each of the following matters:

 

·       the formulation of a designated notification scheme (see clause 2);



·       procedures to be followed by Internet service providers in dealing with overseas hosted Internet content notified to them by the ABA in accordance with a designated notification scheme (for example, procedures to be followed by a particular class of Internet service providers for the filtering, by technical means, of such content).

 

Amendment (25) addresses a concern about the operation of clause 56.  This concern is that there will be many users, including schools and major businesses, that will already have their own blocking technologies in place such as firewalls and filtering software.  It has been argued that it would be inefficient to be ‘double filtering’ such material by also requiring Internet service providers and Internet content hosts to filter all requests coming from such users and that the processing overheads from filtering requirements could be reduced significantly if such users could be exempted from the filtering requirements.

 

To address this concern, Amendment (25) inserts new subclauses 56(2A) to (2F) of proposed Schedule 5 to the BSA.

 

New subclause 56(2A) provides that an industry code or an industry standard will be able to exempt an Internet service provider from taking steps to prevent end-users from accessing prohibited content hosted outside Australia, or content that is substantially similar to such prohibited content, if access is subject to an arrangement that is declared by the code or standard to be a designated alternative access-prevention arrangement for the purposes of the application of clause 56 to those end-users.

 

New subclause 56(2B) provides that the body or association developing an industry code will not be able to able to declare that a specified arrangement, or a class of specified arrangement, is a designated alternative access-prevention arrangement for the purposes of the application of clause 56 to one or more specified end-users, or classes of specified end-users, unless the body or association is satisfied that the arrangement is likely to provide a reasonably effective means of preventing access by those end-users to prohibited content (as defined by clause 8) and potential prohibited content (as defined by clause 9).

 

Similarly, new subclause 56(2C) provides that the ABA, in making an industry standard, will not be able to able to declare that a specified arrangement, or a class of specified arrangement, is a designated alternative access-prevention arrangement for the purposes of the application of clause 56 to one or more specified end-users, or classes of specified end-users, unless the ABA is satisfied that the arrangement is likely to provide a reasonably effective means of preventing access by those end-users to prohibited content and potential prohibited content.

 

New subclause 56(2D) provides examples of arrangements that could be declared to be designated alternative access-prevention arrangements under subclause 56(2A).  These include an arrangement that involves the use of regularly updated Internet content filtering software and an arrangement that involves the use of a ‘family-friendly’ filtered Internet carriage service.  These examples are not intended to be exhaustive.

 

New subclause 56(2E) and (2F) provide that for the purposes of proposed Schedule 5 to the BSA, if an industry code or an industry standard:

 

·         deals to any extent with procedures to be followed by Internet service providers in dealing with prohibited content hosted outside Australia, or content that is substantially similar to such prohibited content; and



·         makes provision for a designated alternative access-prevention arrangement;

 

then



·         the code or standard is deemed to have dealt with the requirements of paragraph 56(2)(d) (which requires codes and standards to deal with procedures, including filtering procedures, to be followed by Internet service providers in dealing with prohibited content hosted outside Australia, or content that is substantially similar to such prohibited content); and



·         the code or standard is deemed to be consistent with subclause 56(2).



 

AMENDMENT (26)

 

Clause 76 of proposed Schedule 5 to the BSA will allow the ABA to make a written determination setting out rules that apply to Internet service providers in relation to the supply of Internet carriage services and to Internet content hosts in relation to the hosting of Internet content in Australia.  Determinations made under this clause will be known as online provider determinations.  They will be will be disallowable instruments for the purposes of the Acts Interpretation Act 1901 and accordingly will be required to be notified in the Commonwealth Gazette , tabled in the Parliament and will be subject to Parliamentary disallowance.

 

Clause 75 provides that each of the rules (if any) set out in an online provider determination in force under clause 76 will be an online provider rule.  Under clauses 78 and 82, a person subject to an online provider rule who contravenes the rule will be guilty of an offence and a continuing offence for each day during which the contravention continues.

 

Concerns have been expressed that clause 76 gives the ABA undue powers to create rules attracting criminal sanctions, even if the online provider determination is subsequently disallowed.

 

Amendment (26) addresses this concern by adding a qualification to clause 76 (new subclause 76(4A)) along the lines of subsection 99(3) of the Telecommunications Act 1997 .  This will ensure that the ABA cannot make an online provider determination unless the determination relates to a matter specified in regulations made under the BSA.