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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

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

(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 Government takes seriously its responsibility to provide an effective regime to address the publication of illegal and offensive material online, while ensuring that regulation does not place onerous or unjustifiable burdens on industry and inhibit the development of the online economy.

 

The proposed regulatory framework contained in the Bill strikes a balance between the needs and interests of the industry and wider community concerns in relation to material that is illegal or highly offensive, or may be harmful to children.  The Government acknowledges that there are technical difficulties with blocking all illegal and offensive material that is hosted overseas but considers that where it is technically feasible to block material this should be done.  It is not acceptable to make no attempt at all on the basis that it may be difficult.

 

The main elements of the proposed framework are that:

·    a complaints mechanism will be established in which any person can complain to the Australian Broadcasting Authority (ABA) about offensive material online;

 

·    material that will trigger action by the ABA will be defined, on the basis of current National Classification Board guidelines for film, as material Refused Classification and rated X, and material rated R that is not protected by adult verification procedures;

 

·    the ABA will be given powers to issue notices to service providers aimed at preventing access to prohibited material which is subject to a complaint if it is hosted in Australia or, if the material is sourced overseas, to take reasonable steps to prevent access if technically feasible;

 

·    indemnities will be provided for service providers to protect them from litigation by customers affected by ABA notices;

 

·    a graduated scale of sanctions against service providers breaching ABA notices or the legislation will apply;



·    subject to the ability of the Minister to declare that a specified person who supplies, or proposes to supply, a specified Internet carriage service is an Internet service provider, the framework will not apply to private or restricted distribution communications such as e-mail; however, current provisions of the Crimes Act 1914 (Cth) in relation to offensive or harassing use of a telecommunications service will apply in this context;



·    a community advisory body will be 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;

 

·    the Commonwealth will be responsible for regulating the activities of Internet service providers and Internet content hosts and the Attorney-General will encourage the development of uniform State and Territory offence provisions complementing the Commonwealth legislation (including section 85ZE of the Crimes Act 1914 ) that create offences for the publication and transmission of proscribed material by users and content creators.



The Government does not propose to mandate any particular technological solutions to filtering overseas sourced material.  Rather, the industry will be asked in the first instance to propose appropriate procedures they would follow preventing access to sites regarded as highly objectionable or illegal (RC or X) under Australian classification standards.  These procedures would take account of technical limitations and cost considerations.  However, if the industry is unable or unwilling to develop such procedures itself, or if the procedures are deficient, the ABA will have the ability to make a mandatory industry standard.  The Minister will also have the ability to direct the ABA to determine an industry standard if an ABA request to a relevant industry body or association to make an industry code is not complied with.  In any event, service providers will only be required to prevent access to material hosted on their service that has been subject to a complaint and when subsequently notified by the ABA.  The primary responsibility for material hosted in Australia will rest with the content providers, who will be subject to uniform State and Territory laws.

 

The Government’s approach does not rely on regulation alone. The Government, along with the community advisory body and its hotline service, will be encouraging parents and educators to become better aware of means and tools to manage the use of online services by minors.  It will also encourage the development of content labelling by Australian content creators and development of labelling standards and encourage service providers to offer a choice for consumers to subscribe to services that allow access to a cache of permitted material only or services that are filtered by the service provider on a best efforts basis.  The Government will also actively pursue collaborative arrangements internationally in relation to online content codes of practice and online labelling of content.

 

FINANCIAL IMPACT STATEMENT

 

The proposed complaints process will place the cost burden for investigation of complaints on the ABA, not the online service providers.  Indicative estimates for ABA to obtain classifications from the Classification Board (which operates on a fully cost-recovered basis) are $1.5 million per annum.  These figures are conservative because it is difficult to estimate the number of referrals and complaints.

 

The ABA will also require funding for administrative costs relating to new responsibilities under the amended BSA and for its expanded role in the assessment of material that may be proscribed. 

 

At least in the short to medium term, Commonwealth funding will be required to establish the community/industry body and to assist with ongoing administrative costs.  Establishment costs for that body are estimated to be $0.2 million, with ongoing annual funding of  $0.5 million required.

 

The total ongoing cost to the Commonwealth of the framework is estimated at $1.9 million per annum.

 

 

REGULATION IMPACT STATEMENT

 

A         Background

 

The use of online services is growing rapidly in Australia.  There are now over 650 online service providers and the ABS estimates that more that 3.6 million Australians have accessed the Internet at some time.

 

Concern has been expressed both within the community and at government level about the nature of material that may be accessed by means of online services, specifically in relation to the perceived ease of access to material that is either pornographic or otherwise unsuitable for children.

 

It appears that the existing censorship laws would apply to online content published, sold or hired using the Internet, where the resulting materials were expressed in hard-copy form, or stored in a disk-file.  It is uncertain, however, whether the acts of publishing or transmitting materials over the Internet, accessing and/or storing materials in non-persistent memory, would be an offence, although some prosecutions have been initiated under section 85ZE of the Commonwealth Crimes Act 1914 .  Section 85ZE makes it an offence for a person knowingly or recklessly to use a carriage service supplied by a carrier in such a way as would be regarded by reasonable persons as being, in all the circumstances, offensive.



Online communications are an intrinsically global medium.  This means that no system of national regulation, short of isolating the nation from all transborder electronic communications, can expect to control all information transmitted online.  Similarly, network or service provider blocking of objectionable content emanating from overseas may not be effective, given the rapid growth of Internet sites, the impossibility of monitoring each one or monitoring all telecommunications traffic, and the relative ease with which users can by-pass domestic service providers by accessing Internet nodes offshore through the international telephone system.  Nor can online service providers be made to ‘police’ the content transmitted through their service (as for example a cinema or newsagent is made to in relation to conventional media), because the online service provider will often not be aware of, or be in a position to be aware of, much of the content which is being accessed or provided by users of their service.

 

Given the limitations of regulatory options which purport to impose strict liability on service providers, regulatory models considered in relation to service providers included:

 

(a)        an individual licensing scheme for service providers setting standards of propriety pre-market;

 

(b)        co-regulation involving industry self-regulation within a legislated framework;

 

(c)        industry self regulation without legislative supervision;

 

(d)        no specific action, relying on the market in conjunction with existing law.

 

Model (b) is the basis for the proposed framework announced by the Government in July 1997.  It would meet community concerns at a level appropriate to the nature of the services and the extent of the real problem.  By incorporating industry self-regulation to a large measure, the expertise of the industry would be utilised in developing workable and practical codes of practice, with which compliance is more likely, while ensuring there is a legal framework to deal with any irresponsible industry behaviour.  However, some regulatory costs are involved and, because codes of practice would be developed within legislated parameters, they may be less responsive and flexible with changes and updating occurring less often.

 

In light of this, the Government's approach announced in July 1997 proposed legislative principles for amendments to the Broadcasting Services Act 1992 (BSA).  The main elements of this framework were that:

 

(a)        the BSA would be amended to provide for a self-regulatory framework for online service providers (persons supplying carriage services which make content accessible on demand to the public) which is broadly consistent with that applying to narrowcasting services in the BSA and to carriage service providers in the Telecommunications Act 1997 .   The proposal would include a complaints mechanism under which any person may complain initially to an online service provider regarding a matter set out in a code of practice, with provision for investigation of unresolved complaints by the ABA;

 

(b)        the framework in the BSA would not hold online service providers responsible for the content accessed through their service where the online service provider is not responsible for the creation of that content; however, online service provider rules in the BSA will require that an online service provider will not knowingly allow a person to use an online service to publish material that is or would be Refused Classification under National Classification Board guidelines or publication of which would otherwise be illegal under an applicable State or Territory law;

 

(c)        t he Attorney-General would encourage the co-operative development of uniform State and Territory offence provisions regulating online content  users, including the publication and transmission of certain material by users; these provision will not regulate online service providers, except to the extent that an online service provider acts as a content originator;

(d)        section 85ZE of the Crimes Act 1914 to be amended to put the concurrent operation of State and Territory offence provisions beyond doubt.



B         Problem

 

Following public and industry consultation on the Government's 1997 proposals, two issues have arisen which require further consideration:

(a)        the range of material which may trigger action by the ABA - issue 1, including choosing the appropriate "off-line" regulatory model to apply to online content, that is, either that applying to videos and magazines or that applying to subscription broadcasting and narrowcasting television services;

(b)        the complaints process ensuring that the framework is responsive to community standards - issue 2 .



C         Objective



The objective of further proposals is to ensure that the regulatory framework is commensurate with community concerns about online content, particularly that the range of material to be controlled is consistent with the range controlled in conventional media.  The Government also considers that the complaints process proposed in 1997 should be revisited to ensure that an unreasonable onus is not placed on service providers and to provide for more timely and efficient handling of complaints to prevent access to material that is of serious concern.



D         Alternatives and impacts relating to issue 1

 

Alternatives

 

In relation to the definition of proscribed online content (issue 1) that may trigger action by the ABA, the Government considered three options:

 

(a)        the definition be limited to any material that has been Refused Classification (RC) under the National Classification Code or that would, in the opinion of the Classification Board be RC;

 

(b)        the definition include RC material, plus material that is or may be X-rated and rated Restricted (R) and that lacks adult verification mechanisms to prevent access by minors;

 

(c)        the definition of proscribed material extend to any RC material and material classified X, and material classified R that is not protected by adult verification procedures such as passwords or PINs.

 

Option (a) would mean that X- and R-rated material would be regulated under State and Territory legislation in relation to content providers. This is consistent with the regulation of ‘off-line’ material, such as videos and magazines.  Option (b) is a compromise position.  Option (c) is consistent with the regulation of content on  pay TV and narrowcast services where X rated material is prohibited and R rated material must be encrypted or modified.

 

Impacts

 

Different considerations arise in relation content that is not hosted by a service provider in Australia.   A consultancy by the CSIRO concluded that blocking by service providers of non-hosted material (such as material sourced from overseas) may be ineffective.  An option would be to do nothing about the control of objectionable online content emanating from overseas.  However, given that the majority of online material is sourced overseas, this would undermine confidence in the proposed regulatory framework.  The complaints process (issue 2) needs to take the regulatory and technical limits on the control of overseas material into account.

 

Costs to the Commonwealth Government will include the cost to the ABA seeking a classification from the Classification Board (on a cost recovered basis) in relation to content subject to complaint.



E           Alternatives and impacts relating to issue 2



Alternatives

 

In relation to the complaints process (issue 2) , the options are:

 

(a)        confirm the 1997 proposal that service providers be the first point for resolution of complaints and the ABA is only involved if complaints are unresolved by  a service providers;

 

(b)        that complaints are made directly to the ABA.

 

Impacts

 

Option (a) has the advantage of ensuring that service providers are aware of and responsive to community concerns about some online content.  By incorporating industry self regulation to a large measure, the expertise of the industry would be utilised in developing workable and practical codes of practice, with which compliance is more likely, while ensuring there is a legal framework to deal with any irresponsible industry behaviour.



However, online service providers are primarily carriers of material (although in some limited instances they act as content providers and to that extent will be subject to proposed State and Territory legislation).  Material subject to a complaint would not generally be originated by the service provider.  It would therefore appear unreasonable to expect services providers to adjudicate complaints about material for which they are not responsible.  Industry has a valid concern about the capacity for individual service providers to undertake complaints resolution - in terms of time, cost, and expertise.  They are reluctant to make decisions about the classification of content, particularly where the material may be illegal and an error of judgement on the service provider’s part could leave them open to sanctions under the proposed framework, or litigation by aggrieved customers.

 

There is also the issue of the timeliness of the complaints response process to prevent access to proscribed material.  If service providers are the first point for complaints, it may leave a hiatus between receiving a complaint and settling it with the service provider taking action to prevent access to the material if required.  This indicates that earlier involvement by the regulator, with discretionary powers to make interim orders to prevent access to hosted material subject to complaint while it is investigated, would be desirable.



Option (b) would also involve lower industry compliance costs.  The impact on responsible service providers would be limited to abiding by a code of practice and complying with ABA ‘takedown’ notices in relation to proscribed content hosted on their systems.  The cost of developing codes of practice would be minimised to individuals through co-operative development through industry associations.  Financial penalties (which will be in the order of those applying to narrowcasters in the BSA) for breaches of regulation by service providers are intended as extreme last resort sanctions in cases of persistent or flagrant illegality.   The ABA will also require funding for administrative costs relating to new responsibilities under the amended BSA.



F
          Consultation

 

The 1997 proposals largely flow from the ABA’s 1996 report into its inquiry into the content of online services which was undertaken with wide industry and public consultation.  These proposals have been subject to consultation through the Standing Committee of Attorneys-General and the Commonwealth/State Online Council, who have supported the general approach.  The further proposals arise from public and industry on the 1997 proposals.  Further public consultation will be possible when a Bill is introduced into Parliament.



G         Conclusions and recommendations

 

With respect to issue 1 , the Government has decided that proscriptions will include RC and X rated material, plus R-rated material that is not protected by adult verification systems.  The Government considers that this benchmark is appropriate to ensure consistency with regulation of subscription broadcasting and narrowcasting services based on the premise that access to online services is less discretionary than access to conventional content in hard copy form.  It also recognises the growing influence of online content in Australia, particularly in relation to the ease of children's access to the Internet who may access it in the home or school, often without adult supervision.



While the Government recognises that technology for delivery of video online is currently limited, for example by the availability of bandwidth, this decision also takes into account developing technological convergence which means that online services will become more and more akin to broadcasting and therefore warrant a higher level of regulation. 



In relation to the control of overseas content, the Government proposes  a strategy in which the ABA will assess overseas content subject to complaint, and if it is of the opinion that it would be RC or rated X, notify service providers that it is to be dealt with in accordance with procedures specified in codes of practice.  Codes of practice will include procedures for service providers to follow when they are made aware of such material hosted by another service provider, including that, if it is technically feasible to do so, service providers take reasonable steps to prevent access to overseas hosted proscribed content.  In the event that a code is not operating or is inadequate, the ABA will be able to determine an alternative regulatory standard, or, at any time, determine a rule applying to all service providers.  As a last resort, the Minister will be able to direct the ABA to determine a standard in relation to this issue.  The ABA will also be expected to develop information sharing arrangements with counterpart organisations internationally.  A uniform national regulatory framework for online content in Australia will also provide a basis for Australia’s participation in international discussions about cross border online content regulation.



The Government will also encourage service providers to offer ‘differentiated’ services, that is, a choice for consumers to subscribe to a service which allows access to a cache of permitted material only or a service that is filtered by the service provider on a best efforts basis.

 

In relation to issue 2 , the Government has decided that the ABA will be the regulatory body responsible for dealing with complaints and enforcing a graduated scale of sanctions against non-compliant service providers as previously proposed, but that service providers will not be the first point for complaints from the public about online content hosted on their services; complaints will be made directly to the ABA.



The Government will also establish a body that will be responsible for monitoring material, providing a community-based ‘hotline’ service to receive information from the public about illegal material and to pass this information to the ABA and police authorities, and equivalent overseas bodies if the material is hosted overseas; and to provide advice to the public.  At least in the short to medium term, Commonwealth funding will be required to establish the community/industry body and assist with ongoing administrative costs.  Establishment costs are estimated to be $0.2 million, with ongoing annual funding of $0.5 million required.



H         Review

 

Paragraph 158(n) of the BSA, which requires the ABA to monitor, and report to the Minister for Communications, Information Technology and the Arts, on the operation of the Act, will provide the mechanism for the ABA to regularly report to the Minister on the operation of the online service provider regulatory framework when established.  A Ministerial review of the operation of the framework (including enforcement) within three years is also proposed.  This review will assess the effectiveness of the framework in meeting objectives and providing sufficient deterrents against any irresponsible industry behaviour.

 

ABBREVIATIONS

 

 

The following abbreviations are used in this explanatory memorandum:

 

ABA:                                       Australian Broadcasting Authority

 

Bill:                                           Broadcasting Services Amendment (Online Services)                                        Bill 1999

 

BSA:                                        Broadcasting Services Act 1992

 

Telecommunications Act:          Telecommunications Act 1997

 

 



NOTES ON CLAUSES

 

Clause 1 - Short title

 

Clause 1 provides that the Bill, when enacted, may be cited as the Broadcasting Services Amendment (Online Services) Act 1999 .

 

Clause 2 - Commencement

 

Clause 2 provides that the Bill will commence on the day on which it receives the Royal Assent. 

 

Schedule 1 to the Bill amends the Broadcasting Services Act 1992 (BSA)  to deal with the regulation of online services. 

 

Schedule 2 to the Bill makes a consequential amendment to section 85ZE of the Crimes Act 1914 which prohibits a person from knowingly or recklessly:

 

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

 

(b)        from using a carriage service supplied by a carrier in such as way as would be regarded by reasonable persons as being, in all the circumstances, offensive.

 

Schedule 2 also puts the concurrent operation of State and Territory offence provisions beyond doubt.

 

Clause 3 - Schedule(s)

 

Clause 3 provides that each Act that is specified in a Schedule to the Bill is amended or repealed in accordance with the applicable items in the Schedule concerned, and any other item in a Schedule to the Bill has effect according to its terms.

 

Schedule 1--Amendment of the Broadcasting Services Act 1992

 

Item 1 - Title

 

Item 1 of Schedule 1 to the Bill amends the long title of the BSA, as a consequence of the Bill, to read ‘An Act relating to broadcasting services and online services, and for related purposes’.  The short title of the BSA will remain as the Broadcasting Services Act 1992 .

 

Item 2 - Amendment of section 3 of the BSA (Objects of this Act)

 

Section 3 of the BSA sets out the objects of the BSA.

 

Item 2 of Schedule 1 to the Bill amends section 3 to provide that, as a consequence of the Bill, the objects of the BSA will include:

 

·       providing a means for addressing certain complaints about Internet content;



·       restricting access to certain Internet content that is likely to cause offence to a reasonable adult; and



·       protecting children from exposure to Internet content that is unsuitable for children.

 

These objects are derived from the Classification (Publications, Films and Computer Games) Act 1995 .

 

Items 3 and 4 - Amendment of section 4 of the BSA (Regulatory policy)

 

Section 4 of the BSA sets out the regulatory policy of the BSA.

 

Item 3 of Schedule 1 to the Bill amends the statement of Parliamentary intention in subsection 4(1).  It will provide that the Parliament intends that different levels of regulatory control be applied across the range of Internet services as well as broadcasting services according to the degree of influence that different types of these services are able to exert in shaping community views in Australia.

 

Item 4 of Schedule 1 to the Bill amends section 4 by adding a new subsection (3) to provide for an additional statement of regulatory policy as a consequence of the Bill. 

It will provide that Parliament intends that Internet content hosted in Australia, and Internet carriage services supplied to end-users in Australia, be regulated in a manner that, in the ABA’s opinion:

 

·       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 (proposed subsection 4(3) of the BSA).

 

The terms ‘Internet carriage service’, ‘Internet content’, ‘Internet content host’, and ‘Internet service provider’ will have the same meaning as in proposed Schedule 5 to the BSA (proposed subsection 4(4) of the BSA).  These concepts are discussed in the notes on clause 2 of proposed Schedule 5.

 

Like the Telecommunications Act 1997 (see, for example, paragraph 245(a)(iii) of that Act), the term ‘end-user’ is used in the Bill without being defined.  An end-user need not necessarily be a customer of an Internet service provider or Internet content host.

 

Items 5 and 6 - Amendment of section 5 of the BSA (Role of the ABA)

 

Section 5 of the BSA sets out the role of the Australian Broadcasting Authority (ABA).

 

Item 5 of Schedule 1 to the Bill amends section 5 as a consequence of the Bill to provide that in order to achieve the objects of the BSA in a way that is consistent with the regulatory policy referred to in section 4 of the BSA (as proposed to be amended), the Parliament charges the ABA with responsibility for monitoring the Internet industry as well as the broadcasting industry.

 

Item 6 of Schedule 1 to the Bill adds a new subsection 5(3) to the BSA to make it clear that section 5 does not, by implication limit the powers of:

 

·       the Australian Communications Authority (ACA) which has telecommunications functions and powers to regulate Internet service providers and other carriage services providers conferred on it under the Australian Communications Authority Act 1997 , the Telecommunications Act 1997 and Part XIC of the Trade Practices Act 1974 ;



·       the Australian Competition and Consumer Commission (ACCC) which has telecommunications functions and powers conferred on it under Telecommunications Act 1997 , the Telstra Corporation Act 1991 , Parts XIB and XIC of the Trade Practices Act 1974 and other provisions of that Act in so far as those provisions apply to a matter connected with telecommunications; or



·       any other body or person (such as the Minister for Communications, Information Technology and the Arts) who has regulatory responsibilities in relation to the Internet industry.

 

Item 7 - Insertion of new section 216B of the BSA - Schedule 5 (online services)

 

Item 7 inserts a new section 216B of the BSA to give effect to proposed Schedule 5 to the BSA which deals with the regulation of online services.

 

Items 8 and 9 - Amendment of clause 18 of Schedule 3 to the BSA

 

Clause 18 of Schedule 3 to the BSA deals with the ability of the ABA to delegate its powers to a member, associate member or staff of the ABA.

 

Item 8 amends paragraph 18(2)(j) of Schedule 3 to allow the ABA to delegate its power to issue, or extend the time for compliance with, a notice, under proposed Schedule 5 to the BSA (see, for example, clauses 28 and 34 of proposed Schedule 5).

 

Item 9 amends subclause 18(2) of Schedule 3 to provide that the ABA will not be permitted to delegate its power to:



·       formulate, vary or revoke a scheme in the nature of a scheme for substituted service under clause 47 of Schedule 5; or



·       determine, vary or revoke an industry standard under proposed Schedule 5 (see Part 5 of that Schedule); or



·       to determine, vary or revoke an online provider determination under proposed Schedule 5 (see Part 6 of that Schedule).

 

Item 10 - Insertion of new Schedule 5 to the BSA--Online services

 

Item 10 inserts a new Schedule 5 to the BSA dealing with the regulation of online services.  Item 7 of Schedule 1 to the Bill inserts a new section 216B of the BSA which gives effect to proposed Schedule 5 to the BSA.

 

Schedule 5--Online services

 

Part 1--Introduction

 

Clause 1 - Simplified outline

 

Clause 1 of proposed Schedule 5 to the BSA sets out a simplified outline of the Schedule to assist readers.

 

Clause 2 - Definitions

 

Clause 2 of proposed Schedule 5 to the BSA sets out the key definitions used in proposed Schedule 5 to the BSA.  Some of these definitions are discussed below.

 

AAT

 

The term ‘AAT’ is defined to mean the Administrative Appeals Tribunal.  Clause 88 of proposed Schedule 5 to the BSA provides for the review of certain decisions by the AAT under that Schedule.

 

Access

 

Examples of the use of the term ‘access’ are the definitions of ‘access-control system’ and ‘Internet carriage service’. 

 

The definition of the term ‘access’ in clause 2 is included to avoid doubt and to avoid the term being given an unduly narrow meaning.  ‘Access’ will include access that is subject to a pre-condition (such as the use of a password), access by way of push technology (where a customer requests an Internet service provider to provides him or her with online material on a regular basis, for example, subscription to an Internet ‘channel’) and access by way of a standing request to an Internet content host to send material stored on the Internet.

 

Civil proceeding

 

The term ‘civil proceeding’ is defined to include a civil action.  The term is used in clauses 27 and 84 of proposed Schedule 5 to the BSA dealing with protection from civil proceedings.

 

Classified

 

The term ‘classified’ is defined to mean classified under proposed Schedule 5 to the BSA, unless the contrary intention appears (see, for example, paragraph 10(1)(b) for a contrary intention).  This term is used in Part 3 of proposed Schedule 5 dealing with prohibited content.  The definition is intended to make it clear that the classification scheme under proposed Schedule 5 is distinct from the classification scheme under the Classification (Publications, Films and Computer Games) Act 1995 .

 

Computer game

 

Examples of the use of the term ‘computer game’ are clauses 10 and 11 of proposed Schedule 5 to the BSA.

 

The term ‘computer game’ is defined to have the same meaning as in the Classification (Publications, Films and Computer Games) Act 1995 (Cth).  Section 5 of that Act defines ‘computer game’ to mean a computer program and associated data capable of generating a display on a computer monitor, television screen, liquid crystal display or similar medium that allows the playing of an interactive game, but does not include:

 

·       an advertisement for a publication, a film or a computer game; or



·       business, accounting, professional, scientific or educational computer software unless the software contains a computer game that would be likely to be classified MA (15+) or RC.

 

Designated notification scheme

 

An example of the use of the term ‘designated notification scheme’ (which applies only in relation to prohibited content hosted overseas, but see also clause 47 which refers to a scheme in the nature of a scheme for substituted service) is in paragraph 37(1)(b) of proposed Schedule 5 to the BSA.  This is a scheme in the nature of a scheme for substituted service of notices under which the ABA is taken, for the purposes of proposed Schedule 5, to have notified each Internet service provider of a matter or thing.  Such a scheme may, for example, deem a provider to have been notified of a notice that is published in a national newspaper or that is published by some other means (such as on a website, with or without security measures) without the need to physically serve the notice on the provider.

Film

 

Examples of the use of the term ‘film’ are clauses 4, 10 and 11 of proposed Schedule 5 to the BSA.

 

The term ‘film’ is defined to have the same meaning as in the Classification (Publications, Films and Computer Games) Act 1995 (Cth).  Section 5 of that Act defines ‘film’  to include a cinematograph film, a slide, video tape and video disc and any other form of recording from which a visual image, including a computer generated image, can be produced, but does not include:

 

·       a computer game; or



·       an advertisement for a publication, a film or a computer game; or



·       a recording for business, accounting, professional, scientific or educational purposes unless it contains a visual image that would be likely to cause the recording to be classified MA, R, X or RC.

 

References in the Bill are generally to Internet content consisting of the contents of a film.  This is because on the Internet material is usually not in the form of a physical object (such as a videotape) from which an image can be derived.  Rather, what is of interest is the images and accompanying material themselves.

 

The classification of Internet content that does not consist of a film or a computer game (such as an advertisement for such a film or game) is dealt with in clause 11 of the Bill. 

 

Internet carriage service

 

‘Internet carriage service’ is defined to mean a listed carriage service that enables end-users to access the Internet.  Like the Telecommunications Act 1997 (see, for example, paragraph 245(a)(iii) of that Act), the term ‘end-user’ is used in the Bill without being defined.  An end-user need not necessarily be a customer of an Internet service provider or Internet content host.

 

‘Listed carriage service’ is defined to have the same meaning as in the Telecommunications Act 1997 . A listed carriage service is defined in section 16 of that Act and is intended to include a service for the carriage of Internet communications.

 

Section 16 of the Telecommunications  Act defines a ‘listed carriage service’ as: 

 

·       a carriage service between a point in Australia and one or more other points in Australia;

 

·       a carriage service between a point in Australia and one or more other points, at least one of which is outside Australia; and

 

·       a carriage service between a point outside Australia and one or more other points, at least one of which is in Australia.

 

Subsection 16(2) of the Telecommunications Act provides that a ‘point’ includes a mobile or potentially mobile point, whether on land, underground, in the atmosphere, in outer space, at sea or anywhere else.  This would include, for example, points on vehicles, aircraft and ships.

 

Subsection 16(3) of the Telecommunications Act makes it clear that a point in the atmosphere, in or below the stratosphere and above Australia is taken to be in Australia.  Accordingly, a point on an aircraft above Australia is taken to be a point in Australia for the purpose of this clause. 

 

Subsection 16(4) of the Telecommunications Act provides that a point on a satellite that is above the stratosphere is taken to be a point outside Australia.

 

A carriage service is defined in section 7 of the Telecommunications Act to mean a service for carrying communications by means of guided and/or unguided electromagnetic energy.  The reference to the carriage of communications by means of ‘guided electromagnetic energy’ includes the carriage of communications by means of a wire, cable, waveguide or other physical medium used, or for use, as a continuous artificial guide for or in connection with the carrying of the communication.   The reference to the carriage of communications by means of ‘unguided electromagnetic energy’ includes communications by means of radiocommunication.

 

Internet content

 

Internet content is defined to mean information (separately defined to include information in any form, or in any combination of forms that makes up a composite such as pictures and text, such as on a web page, which will typically include text and pictures) that:

 

·       is kept on a data storage device (separately defined to include a computer disk); and



·       is accessed, or is available for access, using an Internet carriage service;

 

but does not include information that is transmitted in the form of a broadcasting service.

 

Examples of Internet content include pages on the World Wide Web, e-mail threads, material available for general access from usenet news groups and information available from databases.

 

The definition of ‘Internet content’ will not cover live material such as chat services or voice over the Internet.  Such material will be able to be dealt with by online provider determinations (see clause 76 of proposed Schedule 5 to the BSA).

 

The definition might theoretically extend to e-mails to the extent to which they are stored and available for access.  This is not likely to be a practical consideration, however, because the main focus of the Bill is on the supply of Internet carriage services to the public (see subclause 6(1)).

 

The definition of ‘Internet content’ excludes information transmitted in the form of a broadcasting service.  This is intended to ensure that where material is transmitted over the Internet in the form of a broadcasting service under the BSA (for example audio in the form of a narrowcast radio service), it will be treated as a broadcasting service subject to the rules applying to such services and not as Internet content subject to regulation under proposed Schedule 5 to the BSA.

 

Section 6 of the BSA defines ‘broadcasting service’ broadly to mean a service that delivers television programs or radio programs to persons having equipment appropriate for receiving that service, whether the delivery uses the radiofrequency spectrum, cable, optical fibre, satellite or any other means or a combination of those means, but does not include:

 

(a)        a service (including a teletext service) that provides no more than data, and no more than text (with or without associated still images); or

 

(b)        a service that makes programs available on demand on a point-to-point basis, including a dial-up service; or

 

(c)        a service, or a class of services, that the Minister determines, by notice in the Gazette, not to fall within this definition.

 

The explanatory memorandum to the BSA states that the exclusion in paragraph (b) of the definition of ‘broadcasting service’ encompasses those services which allow a person to receive or access a program at a time determined by the person making a request.  That is, where the scheduling of the program is determined by the service provider, the service is not a ‘point-to-point’ service.

 

‘Program’, in relation to a broadcasting service, is defined to mean:

 

(a)        matter the primary purpose of which is to entertain, to educate or to inform an audience; or

 

(b)        advertising or sponsorship matter, whether or not of a commercial kind.

 

Internet service providers and Internet content hosts

 

Part 2 of proposed Schedule 5 to the BSA (clause 6) defines Internet service providers primarily as persons supplying, or proposing to supply, an Internet carriage service to the public.  Corporate Intranets, for example, will therefore not generally be regarded as Internet service providers.  The concept of supply to the public is dealt with in clause 7.  The Minister will, however, also have the ability to declare that a specified person who supplies, or proposes to supply, a specified Internet carriage service is an Internet service provider.  This is intended primarily as an anti-avoidance mechanism, but also provides flexibility for the regime to deal with unforeseen consequences.

 

Part 3 of proposed Schedule 5 to the BSA defines prohibited Internet content hosted in Australia and overseas.  Under Part 4 of proposed Schedule 5 to the BSA, 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; or



·       an Internet content host is hosting prohibited content in Australia or potential prohibited content in Australia;

 

the person may make a complaint to the ABA about the matter.

 

Clause 2 defines an Internet content host as a person who hosts Internet content in Australia, or who proposes to host Internet content in Australia.

 

Point-to-multipoint service

 

An example of the use of the term ‘point-to-multipoint’ service is subclause 7(3) of proposed Schedule 5 to the BSA.

 

The term is defined to have the same meaning as in the Telecommunications Act 1997 .  Section 7 of that Act defines the term to mean a carriage service which allows a person to transmit a communication to more than one end-user simultaneously.

 

Clause 3 - Restricted access system

 

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

 

Under subclause 3(1) of proposed Schedule 5, 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.

 

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)).

 

A copy of the instrument will be required to be tabled in Parliament within 15 sitting days (subclause 3(3)).

Clause 4 - Internet content that consists of a film

 

Clause 4 is an interpretative provision of relevance to provisions such as clauses 10 and 11 of proposed Schedule 5 to the BSA.

 

Clause 4 provides that for the purpose of proposed Schedule 5, in determining whether Internet content consists of the entire unmodified contents of a film, any technical differences between the Internet content and the film are to be disregarded.

 

For example, if the contents of an existing film were transposed into a form which could be viewed on the Internet and that film had fewer pixels, or fewer frames, then it could still be taken to be the same film.  If, however, ‘scenes’ in the film were modified or transposed, then it would no longer be ‘unmodified’.

 

Clause 5 - Extended meaning of use

 

Clause 5 is based on section 24 of the Telecommunications Act 1997 .  It provides that, unless the contrary intention appears, a reference in proposed Schedule 5 to the BSA to the ‘use’ of a thing is a reference to the use of the thing either in isolation or in conjunction with one or more other things.

 

An example of the term ‘use’ is clause 7 of proposed Schedule 5 to the BSA.

 

Part 2--Internet service providers

 

Clause 6 - Internet service providers

 

Clause 6 defines an Internet service provider.  There are 2 elements to the definition. 

 

Subclause 6(1) sets out the primary definition of an Internet service provider as a person who supplies, or proposes to supply, an Internet carriage service (see clause 2) to the public.  The concept of supply to the public is dealt with in clause 7.

 

The Minister will, however, also have the ability to declare that a specified person who supplies, or proposes to supply, a specified Internet carriage service is an Internet service provider for the purposes of proposed Schedule 5 to the BSA (subclause 6(2)).  This is intended primarily as an anti-avoidance mechanism, but also provides flexibility for the regime to deal with unforeseen consequences.

 

This power is necessary to enable persons supplying Internet carriage services otherwise than to the public to be regulated, if it becomes apparent during the operation of new Schedule 5 that it is necessary to do so.  The operation of new Schedule 5 will be monitored following its enactment to ensure that is aims are not being frustrated.  Should any abuses or unintended exclusions come to light, the Minister will be able to act swiftly to make an appropriate declaration under subclause 6(2).

 

Subclause 6(3) provides that a Ministerial declaration under subclause 6(2) will be a disallowable instrument which accordingly must be notified in the Commonwealth Gazette , tabled in the Parliament and will be subject to Parliamentary disallowance.

 

Clause 7 - Supply to the public

 

Clause 7 sets out the circumstances in which an Internet carriage service will be deemed to be supplied to the public for the purposes of subclause 6(1) (subclause 7(1)).

 

An Internet carriage service will be supplied to the public if one of three conditions are met:

 

·       if the service is used for the carriage of information (see clause 2) between two end-users, both of whom are outside the immediate circle of the supplier of the service - if, for example, an Internet service provider or an Internet content host makes Internet content available for access on the Internet and an individual obtains access to the content using an Internet carriage service, the provider, host and individual will be end-users in relation to the carriage of the content by the Internet carriage service;

 

·       if the service is used to supply point-to-multipoint services (see clause 2) to end-users, at least one of whom is outside the immediate circle of the supplier of the service; or

 

·       if the service is used to supply designated content services (other than point-to-multipoint services) to end-users, at least one of whom is outside the immediate circle of the supplier of the service (subclauses 7(2) to (4)).

 

Designated content services

 

The reference in the last dot point to a designated content service will be a content service of a kind specified in a written determination made by the Minister (subclause 7(5)).   Such a Ministerial determination will be a disallowable instrument for the purposes of the Acts Interpretation Act 1901 and will therefore be required to be published in the Commonwealth Gazette , tabled in the Parliament and will be subject to Parliamentary disallowance (subclause 7(6)).

 

For the purposes of subclause 7(5), ‘content service’ will have the same meaning as in the Telecommunications Act 1997 (subclause 7(7)).  Section 15 of the Telecommunications Act defines a ‘content service’ as:

 

·       a broadcasting service (as defined in the BSA);

·       an on-line service (including those for information and entertainment); and

·       a service specified in a determination made by the Minister.

Subsection 15(2) of the Telecommunications Act allows the Minister to make a determination specifying a kind of service to be a content service.  This gives the flexibility to specifically include particular kinds of services as content services if doubts arise about their status.  Such a determination is a disallowable instrument.

 

Immediate circle

 

The concept of ‘immediate circle’ is defined in clause 2 of proposed Schedule 5 to the BSA to have the same meaning as in the Telecommunications Act 1997 .   Section 23 of that Act provides the principles by which a person’s immediate circle may be determined.

 

Paragraph 23(1)(a) of the Telecommunications Act provides that where a person is an individual, that person’s immediate circle is the person and any employee of the person.

 

Paragraph 23(1)(b) of the Telecommunications Act provides that where a person is a partnership, that person’s immediate circle is the partnership and any employee of the partnership.

 

Paragraph 23(1)(c) of the Telecommunications Act provides that where a person is a body corporate, that person’s immediate circle is:

 

·       the body corporate;



·       an officer of the body corporate (which includes a director, secretary, executive officer and employee); and



·       if another body corporate is related to the body corporate (within the meaning of the Corporations Law), that other body corporate and an officer of that other body corporate.

 

Paragraph 23(1)(d) of the Telecommunications Act provides that the Commonwealth’s immediate circle is:

 

·       the Commonwealth;



·       an authority or institution of the Commonwealth (other than an authority or institution that carries on a business as a core function) and a constituent member or an employee of such an authority or institution;



·       an officer or employee of the Commonwealth;



·       a member of the Australian Defence Force;



·       a member of the Australian Federal Police;



·       a member of the Parliament and a member of the staff of a member of the Parliament; and



·       a person who holds or performs the duties of an office under the Constitution or a law of the Commonwealth.

 

Paragraph 23(1)(e) of the Telecommunications Act provides that the immediate circle of a State is:

 

·       the State;



·       an authority or institution of the State (other than an authority or institution that carries on a business as a core function) and a constituent member or an employee of such an authority or institution;



·       an officer or employee of the State;



·       a member of the police force of the State;



·       a member of the Parliament of the State and a member of the staff of a member of the Parliament of the State; and



·       a person who holds or performs the duties of an office under a law of the State.

 

Paragraph 23(1)(f) of the Telecommunications Act provides that the immediate circle of a Territory is:

 

·       the Territory;



·       an authority or institution of the Territory (other than an authority or institution that carries on a business as a core function) and a constituent member or an employee of such an authority or institution;



·       an officer or employee of the Territory;



·       a member of the police force of the Territory;



·       a member of the Legislative Assembly of the Territory and a member of the staff of a member of the Legislative Assembly of the Territory; and



·       a person who holds or performs the duties of an office under a law of the Territory.

 

Paragraph 23(1)(g) of the Telecommunications Act provides that the immediate circle of an authority or institution of the Commonwealth (other than an authority or institution that carries on a business as a core function) is:

 

·       the authority or institution;



·       a constituent member or an employee of the authority or institution;



·       the Commonwealth;



·       an officer or employee of the Commonwealth;



·       a member of the Australian Defence Force;



·       a member of the Australian Federal Police;



·       a member of the Parliament and a member of the staff of a member of the Parliament;



·       a person who holds or performs the duties of an office under the Constitution or a law of the Commonwealth; and



·       another authority or institution of the Commonwealth (other than an authority or institution that carries on a business as a core function) and a constituent member or an employee of the other authority or institution.

 

Paragraph 23(1)(h) of the Telecommunications Act provides that the immediate circle of an authority or institution of the Commonwealth which does carry on a business as a core function is the authority or institution and a constituent member or employee of the authority or institution.

 

Paragraph 23(1)(i) of the Telecommunications Act provides that the immediate circle of an authority or institution of a State (other than an authority or institution that carries on a business as a core function) is:

 

·       the authority or institution;



·       a constituent member or an employee of the authority or institution;



·       the State;



·       an officer or employee of the State;



·       a member of the police force of the State;



·       a member of the Parliament of the State and a member of the staff of a member of the Parliament of the State;



·       a person who holds or performs the duties of an office under a law of the State; and



·       another authority or institution of the State (other than an authority or institution that carries on a business as a core function) a constituent member or an employee of the other authority or institution.

 

Paragraph 23(1)(j) of the Telecommunications Act provides that the immediate circle of an authority or institution of a State which does carry on a business as a core function is the authority or institution and a constituent member or employee of the authority or institution.

 

Paragraph 23(1)(k) of the Telecommunications Act provides that the immediate circle of an authority or institution of a Territory (other than an authority or institution that carries on a business as a core function) is:

 

·       the authority or institution;



·       a constituent member or an employee of the authority or institution;



·       the Territory;



·       an officer or employee of the Territory;



·       a member of the police force of the Territory;



·       a member of the Legislative Assembly of the Territory and a member of the staff of a member of the Legislative Assembly of the Territory;



·       a person who holds or performs the duties of an office under a law of the Territory; and



·       another authority or institution of a Territory (other than an authority or institution that carries on a business as a core function) and a constituent member or an employee of the other authority or institution.

 

Paragraph 23(1)(l) of the Telecommunications Act provides that the immediate circle of an authority or institution of a Territory which does carry on a business as a core function is the authority or institution and a constituent member or employee of the authority or institution.

 

Paragraph 23(1)(m) of the Telecommunications Act provides that the immediate circle or a tertiary education institution (as defined in subsection 23(11)) is the institution together with:

 

·       a member of the governing body of the institution;

 

·       an officer or employee of the institution; and

 

·       students enrolled at the institution.

 

Paragraph 23(1)(n) of the Telecommunications Act provides that the immediate circle of any person may be extended to include any person specified in a determination made by the Minister under subsection 23(2).  Any such determination is disallowable by the Parliament.  This power is included to enable any anomalous situations which emerge to be addressed.

 

Subsections 23(3) and 23(4) of the Telecommunications Act make it clear that a Ministerial determination under subsection 23(2) may be conditional or unconditional and that nothing in the categories of immediate circle in paragraphs 23(1)(a) to (m) will limit the operation of subsections 23(2) and 23(3).

 

The test of whether an authority or institution carries on a business as a core function (a concept used in section 23 of the Telecommunications Act) will require an analysis of the functions of the authority or institution concerned.  Subsections 23(5) and (6) enable greater certainty to be given in borderline cases by means of a legislative instrument.  They empower the Minister to make a determination providing that specified Government authorities or institutions are taken to carry on, or not carry on, a business as a core function for the purpose of section 23.

 

The Minister’s determination under subsections 23(2), (5) or (6) have effect accordingly and is a disallowable instrument for the purposes of the Acts Interpretation Act 1901 and will therefore be required to be published in the Commonwealth Gazette , tabled in the Parliament and will be subject to Parliamentary disallowance.

 

Subsection 23(9) of the Telecommunications Act makes it clear that, for the purposes of section 23 of that Act, a person who holds or performs the duties of the office of Administrator of the Northern Territory is taken to be an officer of that Territory.

 

Subsection 23(10) of the Telecommunications Act makes it clear that, for the purposes of section 23 of that Act, the Australian Federal Police is to be taken to be the police force of the Australian Capital Territory.

 

Subsection  23(11) of the Telecommunications Act makes it clear that the term ‘core function’ in relation to an authority or institution means a function of the authority or institution other than a secondary or incidental function.  It is intended that authorities or institutions of Commonwealth, State or Territory Governments which carry on a business as part of their core function should not be considered to be part of the immediate circle of non-business parts of the Commonwealth, State or Territory.  In particular, where those authorities or institutions are competing with the private sector, such a broad immediate circle would not be competitively neutral.

 

Part 3--Prohibited content

 

Division 1--Prohibited content and potential prohibited content

 

Clause 8 - Prohibited content

 

Clause 8 is an interpretative provision which sets out when Internet content hosted in or outside Australia will be prohibited content.

 

For the purposes of proposed Schedule 5 to the BSA, Internet content hosted in Australia will be prohibited content if:

 

·       it has been classified RC or X under proposed Schedule 5 of the BSA by the Classification Board established by the Classification (Publications, Films and Computer Games) Act 1995 ; or



·       it has been classified R under proposed Schedule 5 of the BSA by the Classification Board and access to it is not subject to a restricted access system (see clause 3).

 

For the purposes of proposed Schedule 5 to the BSA, Internet content hosted outside Australia will be prohibited content if it has been classified RC or X under proposed Schedule 5 by the Classification Board.

 

Clause 9 - Potential prohibited content

 

For the purposes of proposed Schedule 5 to the BSA, Internet content will be potential prohibited content if:

 

·       it has not been classified under proposed Schedule 5 to the BSA by the Classification Board established by the Classification (Publications, Films and Computer Games) Act 1995 ; and



·       if it were to be classified under proposed Schedule 5, there is a substantial likelihood that it would be prohibited content as defined by clause 8 (subclause 9(1)).



An example of the use of the concept of potential prohibited content is clause 28 of proposed Schedule 5 to the BSA. 

 

To avoid doubt, in determining whether particular Internet content is potential prohibited content, it is to be assumed that proposed Schedule 5 authorised the Classification Board to classify the Internet content (subclause 9(2)).

 

Clause 10 - Classification of Internet content that consists of a film or a computer game

 

Clause 10 allows existing classifications for films to be used if the film is available over the Internet.

 

If Internet content consists of the entire unmodified contents of a film or a computer game (see clauses 2 and 4) and the film or game has been classified under the Classification (Publications, Films and Computer Games) Act 1995 , the Internet content will be deemed to have been given the same classification by the Classification Board under proposed Schedule 5 to the BSA as it was given under the Classification (Publications, Films and Computer Games) Act  (subclause 10(1)).

 

If Internet content consists of the entire unmodified contents of a film or a computer game and the film or game has not been classified under the Classification (Publications, Films and Computer Games) Act, the Classification Board will be obliged to give the Internet content the same classification under proposed Schedule 5 to the BSA as it would be given under the Classification (Publications, Films and Computer Games) Act  (subclause 10(2)).

 

Clause 10 needs to be read in conjunction with clause 4.  Clause 4 provides that for the purpose of proposed Schedule 5, in determining whether Internet content consists of the entire unmodified contents of a film, any technical differences between the Internet content and the film are to be disregarded.  For example, if the contents of an existing film were transposed into a form which could be viewed on the Internet and that film had fewer pixels, or fewer frames, then it could still be taken to be the same film.  If, however, ‘scenes’ in the film were modified or transposed, then it would no longer be ‘unmodified’.

 

Clause 11 - Classification of Internet content that does not consist of a film or a computer game

 

Clause 11 provides that if Internet content does not consist of the entire unmodified contents of a film or a computer game (see clauses 2 and 4), the Classification Board will be obliged to give it a corresponding classification under proposed Schedule 5 to the BSA as a film would be given under the Classification (Publications, Films and Computer Games) Act 1995 .

 

This clause will apply if, for example, Internet content consists of an advertisement for a film or computer game.  It will enable such as advertisement to be classified as if it were a film.

 

Division 2--Reclassification

 

The provisions in Division 2 of Part 3 of proposed Schedule 5 to the BSA largely mirror corresponding arrangements under the Classification (Publications, Films and Computer Games) Act 1995 .

 

Clause 12 - Reclassification of Internet content

 

If Internet content has been classified under proposed Schedule 5 to the BSA by the Classification Board (otherwise than because of subclause 10(1)):

 

·       the Board must not reclassify the content within the 2-year period beginning on the day the classification occurred; and



·       after that 2-year period:



-     the Board may reclassify the content if required to do so by the Minister for       Communications, Information Technology and the Arts or the ABA and must         act on such a requirement; or



-     the Board may reclassify the content  on its own initiative (subclauses 12(1)       to (3)).



If the Classification Board reclassifies Internet content, it must notify the ABA accordingly (subclause 12(4)).

 

Clause 13 - Notice of intention to reclassify Internet content

 

If Internet content has been classified by the Classification Board under proposed Schedule 5 to the BSA (otherwise than because of subclause 10(1)) and the Board intends to reclassify the content then the Director of the Board must:

 

·       give notice of that intention, inviting submissions about the matter - this notice must specify the day on which the Board proposes to consider the matter; and



·       arrange for the contents of the notice to be published, in such manner as the Director decides, at least 30 days before the Board proposes to consider the matter; and



·       give a copy of the notice to the Minister and to the ABA at least 30 days before the Board proposes to consider the matter (subclauses 13(1) and (2)).

 

The matters that the Classification Board is to take into account in reclassifying the Internet content include issues raised in submissions made to the Board about the matter (subclause 13(3)).

 

Division 3--Review of classification decisions

 

Subdivision A--Review of classification of Internet content

 

Clause 14 - Persons who may apply for review

 

Clause 14 sets out the persons who may apply to the Classification Review Board established by the Classification (Publications, Films and Computer Games) Act 1995 for a review of the classification of Internet content classified by the Classification Board under proposed Schedule 5 to the BSA (otherwise than because of subclause 10(1)).

 

These persons are the Minister, the ABA, an Internet service provider, an Internet content host hosting, or proposing to host, content in Australia and  a person aggrieved by the classification.

 

Clause 15 - Applications for review

 

Subclause 15(1) sets out the form in which an application for review of a classification must be made.

 

Subclause 15(2) empowers the Minister or the ABA to apply for review of a classification at any time.

 

Subclause 15(3) provides that any other application for review of a classification must be made within 30 days after the applicant became aware of the classification or within such longer time as the Classification Review Board allows.

 

Regulations prescribing fees for the purposes of paragraph 43(1)(d) of the Classification (Publications, Films and Computer Games) Act 1995 (which requires certain applications to the Classification Review Board for review of certain decisions of the Classification Board under that Act to be accompanied by the prescribed fee) will apply, subject to such modifications, including additions, omissions and substitutions (if any) as are specified in regulations made for the purposes of subclause 15(4) of proposed Schedule 5 to the BSA, to a review of a classification under that Schedule in a corresponding way to the way in which they apply to a review of a classification under the Classification (Publications, Films and Computer Games) Act (subclauses 15(4) and (6)).

 

Any such fees will be limited to cost recovery and will not be able to amount to taxation (subclause 15(5)).

 

Clause 16 - Review

 

For the purposes of reviewing a classification of Internet content, the Classification Review Board:

 

·       will be able to exercise all the powers and discretions that are conferred on the Classification Board by proposed Schedule 5 to the BSA; and



·       will be required to make a written decision confirming the classification or reclassifying the content (subclause 16(1)).

 

If the Classification Review Board reclassifies the Internet content, proposed Schedule 5 to the BSA (other than Subdivision A of Division 3 of Part 3) will have effect as if the content had been reclassified by the Classification Board (subclause 16(2)).

 

Subdivision B--Review of Internet content that consists of a

film or a computer game

 

Clause 17 - Review of classification of Internet content that consists of a film or a computer game

 

If:

 

·       Internet content consists of the entire unmodified contents of a film or a computer game (see clauses 2 and 4); and

 

·       the film or game has been classified under the Classification (Publications, Films and Computer Games) Act 1995 ;



·       the decision to classify the film or game is reviewed by the Classification Review Board under that Act; and



·       as a result of the review, the Board classifies the film or game under that Act;

 

proposed Schedule 5 to the BSA will have effect as if the film or computer game had been given the same classification by the Classification Board under that Schedule as it was given under the Classification (Publications, Films and Computer Games) Act 1995 by the Classification Review Board.



Division 4--Miscellaneous

 

Clause 18 - Fees for classification of Internet content

 

The ABA will be liable to pay fees in respect of the classification ‘under this Schedule’ of Internet content (subclause 18(1)). 

 

References in clause 18 to ‘classification under this Schedule’ mean classification under proposed Schedule 5 to the BSA that is sought by the ABA (otherwise than by way of an application under clause 14) (subclause 18(7)).  This will avoid the risk of the ABA being subject to double fees.

 

The fees will be limited to cost recovery and will not be able to amount to taxation (subclause 18(6)).

 

The amount of fees will be ascertained depending on whether Internet content consists of the entire unmodified contents of a film, a computer game or some other thing (subclause 18(2)).

 

If Internet content consists of the entire unmodified contents of a film, regulations prescribing fees for the purposes of paragraph 14(1)(d) of the Classification (Publications, Films and Computer Games) Act 1995 (which requires an application for a classification of a film to be accompanied by the prescribed fee for that category of film) will apply, subject to such modifications, including additions, omissions and substitutions (if any) as are specified in regulations made for the purposes of subclause 18(3) of proposed Schedule 5 to the BSA, in relation to the classification under this Schedule of the content in a corresponding way to the way in which they apply to classification of the film under the Classification (Publications, Films and Computer Games) Act (subclauses 18(3) and (7)).

 

If Internet content consists of a computer game, regulations prescribing fees for the purposes of paragraph 17(1)(d) of the Classification (Publications, Films and Computer Games) Act 1995 (which requires an application for a classification of a computer game to be accompanied by the prescribed fee for that category of game) will apply, subject to such modifications, including additions, omissions and substitutions (if any) as are specified in regulations made for the purposes of subclause 18(4) of proposed Schedule 5 to the BSA, in relation to the classification under this Schedule of the content in a corresponding way to the way in which they apply to classification of the computer game under the Classification (Publications, Films and Computer Games) Act (subclauses 18(4) and (7)).

 

If Internet content does not consists of the entire unmodified contents of a film or a computer game, regulations prescribing fees for the purposes of paragraph 14(1)(d) of the Classification (Publications, Films and Computer Games) Act 1995 (which requires an application for a classification of a film to be accompanied by the prescribed fee for that category of film) will apply, subject to such modifications, including additions, omissions and substitutions (if any) as are specified in regulations made for the purposes of subclause 18(5) of proposed Schedule 5 to the BSA, in relation to the classification under this Schedule of the content in a corresponding way to the way in which they apply to classification of the film under the Classification (Publications, Films and Computer Games) Act (subclauses 18(5) and (7)).

 

Clause 19 - Decisions of the Classification Board etc.

 

Section 57 of the Classification (Publications, Films and Computer Games) Act 1995 (which deals with procedural matters relating to decisions of the Classification Board) will apply to the consideration by the Classification Board of a matter arising under proposed Schedule 5 to the BSA in a corresponding way to the way in which it applies to the consideration of an application under the Classification (Publications, Films and Computer Games) Act 1995 (subclause 19(1)).

 

To avoid doubt, subclause 19(2) provides that the following provisions of the Classification (Publications, Films and Computer Games) Act 1995 will not apply to a classification under proposed Schedule 5 to the BSA:



·       section 10, which require classifications to be in writing;



·       section 19, which deals with the ability of the Board to decline to deal with applications for classification of a film or a computer game in certain circumstances;



·       section 20, which requires the Board to determine consumer advice giving information about the content of a film or computer game;



·       section 22, which prohibit a film or computer game being classified if it contains certain advertisements;



·       section 25, which requires the Director of the Classification Board to issue a classification certificate for each publication, film and computer game that is classified by the Board;



·       section 26, which deals with notification of decisions of the Classification Board and the Classification Review Board;



·       section 27, which allows a person to apply to the Director of the Classification Board for a copy of a classification certificate or of a notice under section 26; and



·       section 28, which provides that a decision takes effect on the day on which notice of the decision is given under section 26.

 

 

Part 4--Complaints to, and investigations by, the ABA

 

Division 1--Making of complaints to the ABA

 

Clause 20 - Complaints about prohibited content or potential prohibited content

 

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; or



·       an Internet content host is hosting prohibited content in Australia or potential prohibited content in Australia;

 

the person will be able to make a complaint to the ABA about the matter (subclauses 20(1) and (2)).

 

The person will not be able to make a complaint about something that occurs before 1 January 2000 (subclause 20(5)).  This is intended to afford Internet service providers and Internet content hosts an opportunity to put arrangements in place to enable them to avoid contravening the regulatory regime in proposed Schedule 5 to the BSA and to enable the ABA to ensure it is properly equipped to handle complaints.

 

Subclause 20(3) sets out the details that must be included in a complaint.  As a result of clause 27, a complainant who makes a complaint under Division 1 of Part 4 in good faith will given immunity from civil proceedings (such as for defamation or breach of contract) if another person suffers loss, damage or injury or any kind because of the making of the complaint.

 

Subclause 20(4) provides that the requirement in paragraph 20(3)(b) for the complaint to set out how to access the Internet content will not apply to a complaint to the extent (if any) to which finding out how to access the Internet content would cause the complainant to contravene State or Territory legislation (such as privacy legislation).

 

Clause 21 - Complaints about breaches of industry codes, industry standards and online provider rules

 

Clause 21 provides that if a person has reason to believe that an Internet service provider or an Internet content host has contravened a relevant industry code under Part 5 of proposed Schedule 5 to the BSA or has contravened a relevant online provider rule (see clause 75), including the requirement in clause 68 to comply with a relevant industry standard, a person will be able to make a complaint to the ABA about the matter.

 

Clause 22 - Form of complaint

 

Clause 22 generally requires a complaint under Division 1 of Part 4 of proposed Schedule 5 to the BSA to be in writing.  The ABA will, however, be able to permit complaints to be given in accordance with specified software requirements, by way of a specified kind of electronic transmission.

 

Clause 23 - Residency etc. of complainant

 

Clause 23 provides that a person will not be entitled to make a complaint under Division 1 of Part 4 of proposed Schedule 5 to the BSA unless the person is a resident of Australia, a body corporate that carries on activities in Australia or the Commonwealth, a State or a Territory.

 

Division 2--Investigations by the ABA

 

Clause 24 - Investigation of complaints by the ABA

 

The ABA will be required to investigate a complaint under Division 1 of Part 4 of proposed Schedule 5 to the BSA unless the ABA:



·       is satisfied that the complaint is frivolous, vexatious or not made in good faith; or



·       has reason to believe that the complaint was made for the purpose, or for purposes that include the purpose, of frustrating or undermining the effective administration of proposed Schedule 5 (subclauses 24(1) and (2)).

 

The ABA will be required to notify the complainant of the results of such an investigation (subclause 24(3)).

 

The ABA will also be able to terminate such an investigation if it is of the opinion that it does not have sufficient information to conclude the investigation (subclause 24(4)).

 

Clause 25 - ABA may investigate matters on its initiative

 

Clause 25 sets out the matters occurring on or after 1 January 2000 that the ABA may investigate if it thinks it desirable to do so. 

 

It is not intended that clause 25 will be used by the ABA to monitor content actively.  Clause 25 provides a mechanism to allow the ABA to investigate matters where, for example, information about particular Internet content or conduct of and Internet service provider or Internet content host is drawn to its attention by a source other than a complaint from the public.  For example, an additional function of the ABA under the Bill will be to liaise with regulatory and other relevant bodies overseas, such as police authorities and ‘hotline’ complaints services like the UK Internet Watch Foundation about co-operative arrangements for the Internet industry (see paragraph 90(e) of proposed Schedule 5).  Arrangements could include information sharing arrangements and the ABA will therefore need to be able to act on any such information received.  Clause 25 will also improve the ABA’s ability to deal with avoidance situations.

 

Clause 26 - Conduct of investigations

 

Clause 26 enables the ABA to conduct investigations under Division 2 of Part 4 of proposed Schedule 5 to the BSA as it thinks fit.

 

The ABA will be able, for the purposes of an investigation, obtain information from such persons and make such inquiries as it thinks fit.

 

Clause 26 will apply in addition to Part 13 of the BSA which deals with information gathering by the ABA, including investigation powers and procedures.

 

Clause 27 - Protection from civil proceedings

 

Clause 27 provides an immunity from civil proceedings (see clause 2) (such as proceedings for breach of contract in relation to the disclosure of a password or proceedings for defamation) for a person who in good faith makes a complaint under Division 1 of Part 4 of proposed Schedule 5 or who make a statement or gives information to the ABA in connection with an investigation under Division 2 of Part 4.

 

Division 3--Action to be taken in relation to a complaint about prohibited content hosted in Australia

 

Clause 28 - Action to be taken in relation to a complaint about prohibited content hosted in Australia

 

If in the course of an investigation under Division 2 of Part 4 of proposed Schedule 5 to the BSA the ABA is satisfied that Internet content hosted in Australia is prohibited content, the ABA will be required to give the relevant Internet content host a written notice directing the host not to host the prohibited content.  This notice is called a final take-down notice and is intended to have ongoing effect (subclause 28(1)).

 

The ABA’s decision to give an Internet content host a final take-down notice will be reviewable by the AAT on the application of the Internet content host concerned (paragraph 88(1)(b) and subclause 88(2)).

 

Subclause 28(2) sets out the procedure that will apply if in the course  of an investigation under Division 2 of Part 4 the ABA is satisfied that Internet content hosted in Australia is potential prohibited content.

 

If the ABA is satisfied that, if the Internet content were to be classified by the Classification Board under proposed Schedule 5, there is a substantial likelihood that the Internet content would be classified RC or X, the ABA will be required to:

 

·       give the relevant Internet content host a written notice (known as an interim take-down notice) directing the host not to host the Internet content until the ABA notifies the host of the Classification Board’s classification of the Internet content; and



·       request the Classification Board to classify the Internet content (paragraph 28(2)(a)).

 

The ABA’s decision to give an Internet content host an interim take-down notice will be reviewable by the AAT on the application of the Internet content host concerned (paragraph 88(1)(a) and subclause 88(2)).

 

Interim take-down notices have been limited to RC and X-rated content rather than R-rated content because of the less serious nature of R-rated material.  If interim take-down notices were to apply to R-rated material, this would be likely to greatly increase the ABA’s administrative costs and industry’s compliance costs.

 

If the ABA is satisfied that, if the Internet content were to be classified by the Classification Board under proposed Schedule 5, there is a substantial likelihood that the Internet content would be classified R, the ABA will be required to request the Classification Board to classify the Internet content (paragraph 28(2)(b)). 

If the ABA makes a decision under paragraph 28(2)(b) to request the Classification Board to classify Internet content, the ABA will be required to give the relevant Internet content host a written notice setting out the decision (subclause 28(6)).

 

The ABA’s decision under paragraph 28(2)(b) of proposed Schedule 5 to the BSA to request the Classification Board to classify Internet content hosted in Australia by an Internet content host will be reviewable by the AAT on the application of the Internet content host concerned (paragraph 88(1)(d) and subclause 88(2)).

 

If the Classification Board receives a request under paragraph 28(2)(a) or (b) to classify particular Internet content, the Classification Board will be obliged to classify the content and inform the ABA in writing of its classification (subclause 28(3)).

 

If the ABA is informed of the Classification Board’s classification of particular Internet content, the ABA will be required to:



·       give the relevant Internet content host a written notice setting out the classification; and



·       in a case where the effect of the classification is that the Internet content is prohibited content - give the Internet content host a final take-down notice directing the host not to host the prohibited content (subclause 28(4)).

 

If the ABA requests the Classification Board to classify particular Internet content, the ABA will be required to give the Classification Board:

 

·       either sufficient information to enable the Board to access the content or a copy of the content; and



·       sufficient information about the content to enable the Board to classify the content; and



·       additional information (either at the request of the Board or on the ABA’s own initiative) about the content if the ABA is of the opinion that the additional information would be likely to facilitate the classification of the content (subclause 28(5)).

 

Clause 29 - Deferral of action in order to avoid prejudicing a criminal investigation

 

In cases of extreme concern, for example paedophiles circulating illegal material online or the enticement or exploitation of children for illegal purposes through the use of online services, it is possible that a police investigation may be concurrent with a complaint to the ABA about particular material.  The public nature of the ABA complaints and investigation process proposed in the Bill could prejudice a police investigation in these circumstances.  As a safeguard, therefore, it is proposed to give the ABA a discretion to defer action where a member of the Federal, State or Territory police satisfies the ABA that an investigation should be deferred for a specified period.

 

If:

 

·       in the course of an investigation under Division 2 of Part 4 of proposed Schedule 5 to the BSA the ABA is satisfied that Internet content hosted in Australia is prohibited content or potential prohibited content; and



·       apart from subclause 29(1), the ABA would be required to take action under subclause 28(1) or (2) in relation to a complaint about the content; and



·       a member of an Australian police force (as defined in clause 2) satisfies the ABA that the taking of that action should be deferred until the end of a particular period in order to avoid prejudicing a criminal investigation;

 

the ABA will be able to defer taking that action until the end of that period (subclause 29(1)).

 

Subclause 29(1) will have effect despite anything in clause 28 (subclause 29(2)).

 

Clause 30 - Revocation of final take-down notices--subsequent implementation of restricted access system for R-rated content

 

If:

 

·       a particular Internet content host is subject to a final take-down notice relating to particular Internet content; and

 

·       the Internet content has been classified R by the Classification Board under proposed Schedule 5 to the BSA; and



·       at the time when the final take-down notice was issued, access to the Internet content was not subject to a restricted access system (see clause 3); and



·       the Internet content host satisfies the ABA that, as a result of the implementation of a restricted access system in relation to the Internet content, the content ceases to be prohibited content;

 

the ABA will be required to revoke the final take-down notice (subclause 30(1)).

 

If a final take-down notice is revoked under clause 30, the ABA will be required to give the Internet content host concerned a written notice to this effect (subclause 30(2)).

 

Clause 31 - Revocation of interim take-down notices--voluntary withdrawal of Internet content

 

Clause 31 is intended to fast track the equivalent of a final take-down notice with the consent of an affected Internet content host.

 

If:

 

·       a particular Internet content host is subject to an interim take-down notice relating to particular Internet content; and



·       before the Classification Board classifies the Internet content, the Internet content host ceases to host the Internet content and gives the ABA a written undertaking not to host the Internet content;

 

the ABA will be able to:



·       accept the undertaking; and

 

·       revoke the interim take-down notice; and



·       by written notice given to the Classification Board, determine that the Board is not required to classify the Internet content (subclause 31(1)).

 

It is assumed that where this occurs, the fees for the Board’s work will be adjusted accordingly.

 

If an interim take-down notice is revoked under clause 31, the ABA will be required to notify the Internet content host concerned to this effect (subclause 31(2)).

 

An Internet host will be required to comply with an undertaking given to the ABA by the host and accepted by the ABA under clause 31 (see subclause 35(4)).  This requirement will be an online provider rule (see clause 75).  Contravention of online provider rules is an offence (clause 78) and a continuing offence (clause 82).

 

Clause 32 - Revocation of take-down notices--reclassification of Internet content

 

The ABA will be required to revoke a final take-down notice if:

 

·       Internet content has been classified by the Classification Board under proposed Schedule 5 to the BSA (otherwise than because of subclause 10(1)); and



·       a particular Internet content host is subject to a final take-down notice relating to the Internet content; and



·       the Classification Board reclassifies the Internet content; and



·       as a result of the reclassification, the content ceases to be prohibited content (subclause 32(1)).

 

If a final take-down notice is revoked under clause 32, the ABA will be required to give the Internet content host concerned a written notice stating that the final take-down notice has been revoked (subclause 32(2)).

 

Clause 33 - Revocation of take-down notices--reclassifiction of Internet content that consists of a film or a computer game

 

The ABA will be required to revoke a final take-down notice if:

 

·       Internet content consists of the entire unmodified contents of a film or a computer game (see clauses 2 and 4); and



·       the Classification Board reclassifies the film or computer game under the Classification (Publications, Films and Computer Games) Act 1995 ; and



·       a particular Internet content host is subject to a final take-down notice relating to the Internet content; and



·       as a result of the reclassification, the Internet content ceases to be prohibited content (subclause 33(1)).

 

If a final take-down notice is revoked under clause 33, the ABA will be required to give the Internet content host concerned a written notice to this effect (subclause 33(2)).

 

Clause 34 - Anti-avoidance--special take-down notices

 

As an anti-avoidance measure, clause 34 provides that if:

 

·       a particular Internet content host is subject to an interim or final take-down notice relating to particular Internet content; and



·       the ABA is satisfied that the Internet content host is hosting in Australia, or is proposing to host in Australia, Internet content that is substantially similar to the Internet content identified in the interim or final take-down 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 Internet content host a written notice known as a special take-down notice directing the host not to host the similar Internet content at any time when the interim or final take-down notice is in force.

 

The use of the term ‘substantially similar’ is intended to convey the idea that the content must be similar in substance to content about which the Classification Board’s notice expressed concerns.  For example, if a picture hosted on a web site were classified because a particular part or aspect of the picture was offensive, then the ABA’s focus in using this provision would be on whether that concern about the picture had been addressed.

 

The ABA’s decision to give an Internet content host a special take-down notice will be reviewable by the AAT on the application of the Internet content host concerned (paragraph 88(1)(c) and subclause 88(2)).

 

Clause 35 - Compliance with rules relating to prohibited content etc.

 

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 (see clauses 28 and 34) as soon as practicable, and in any event within 24 hours, after the notice was given to the host (subclauses 35(1) to (3)).

 

An Internet content host will also be required to comply with an undertaking given to the ABA by the host and accepted by the ABA under clause 31 (subclause 35(2)).

 

The rules set out in clause 35 are online provider rules (see clause 75).  Accordingly, an Internet content host who contravenes any interim-take down notice, final take-down notice or special take-down notice that applies to the host or any undertaking given to, and accepted by, the ABA under clause 31 will be subject to an offence under clause 78 and to a continuing offence under clause 82.

 

Clause 36 - Identification of Internet content

 

Clause 36 provides that Internet content will be able to be identified in a notice under Division 3 of Part 4 of proposed Schedule 5 to the BSA by setting out the content, describing the content or in any other way.

 

Division 4--Action to be taken in relation to a complaint about prohibited content hosted outside Australia

 

Clause 37 - Action to be taken in relation to a complaint about prohibited content hosted outside Australia

 

If, in the course of an investigation under Division 2 of Part 4 of proposed Schedule 5, the ABA is satisfied that Internet content hosted outside Australia is prohibited content or potential prohibited content, the ABA will be required:

 

·       if the ABA considers the content is of a sufficiently serious nature to warrant referral to a law enforcement agency (whether in or outside Australia) - notify the content (see clause 46):



-     to a member of the Australian police force (see clause 2); or



-     if there is an arrangement (such as an MOU) between the ABA and the chief     of an Australian police force under which the ABA is authorised to notify the      content to another person or body, whether in Australia or overseas - to that other person or body; and



·       if an industry code or industry standard under Part 5 deals with the matters referred to in subclause 56(2) (which relates to procedures which Internet service providers will follow in dealing with overseas hosted Internet content notified by the ABA under a designated notification scheme set out in an industry code) -  notify the content to Internet service providers under the designated notification scheme (see clause 2) set out in the code or standard; and



·       if there is no code or standard dealing with the matters referred to in subclause 56(2) - give each Internet service provider known to the ABA a written notice (known as a standard access-prevention notice) directing the provider to take all reasonable steps to prevent end-users from accessing the content (subclause 37(1)).

 

Clause 47 deals with the circumstances where the ABA may be deemed to have given a standard access-prevention notice for the purposes of paragraph 37(1)(c).

 

The ABA’s decision to issue such a notice will be reviewable by the AAT on the application of the relevant Internet service provider concerned (paragraph 88(1)(e) and subclause 88(2)).

 

In determining whether particular steps are reasonable for the purposes of paragraph 37(1)(c), 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) and such other matters as are relevant (subclauses 37(2) and (3)).  It is also anticipated that the statement of Parliamentary intention in proposed subsection 4(3) will inform the development of any industry code or industry standard on this issue.

 

The manner in which Internet content will be able to be notified to the police under paragraph 37(1)(a) will include, but will not be limited to, a manner ascertained in accordance with an arrangement (such as an MOU) between the ABA and the chief (however described) of the police force concerned (subclause 37(4)).

 

If a member of the Australian Federal Police or of a State or Territory police force is notified of particular Internet content under clause 37, that person may notify the content to a member of another law enforcement agency in Australia or overseas (subclause 37(5)).

 

Clause 37 will not, by implication, limit the ABA’s powers to refer other matters to a member of the Australian Federal Police or of a State or Territory police force (subclause 37(6)).

 

Clause 38 - Deferral of action in order to avoid prejudicing a criminal investigation

 

In cases of extreme concern, for example paedophiles circulating illegal material online or the enticement or exploitation of children for illegal purposes through the use of online services, it is possible that a police investigation may be concurrent with a complaint to the ABA about particular material.  The public nature of the ABA complaints and investigation process proposed in the Bill could prejudice a police investigation in these circumstances.  As a safeguard, therefore, it is proposed to give the ABA a discretion to defer action where a member of the Federal, State or Territory police satisfies the ABA that an investigation should be deferred for a specified period.

 

If:

 

·       in the course of an investigation under Division 2 of Part 4 of proposed Schedule 5 to the BSA the ABA is satisfied that Internet content hosted outside Australia is prohibited content or potential prohibited content; and



·       apart from subclause 38(1), the ABA would be required to take action under subclause 37(1) in relation to a complaint about content; and



·       a member of an Australian police force satisfies the ABA that the taking of that action should be deferred until the end of a particular period in order to avoid prejudicing a criminal investigation;

 

the ABA will be able to defer taking that action until the end of that period (subclause 38(1)).

 

Subclause 38(1) will have effect despite anything in clause 37 (subclause 38(2)).

 

Clause 39 - Withdrawal of notification of content--reclassification of Internet content

 

The notification of Internet content will be taken to have been withdrawn if:

 

·       it has been classified by the Classification Board under proposed Schedule 5 to the BSA (otherwise than because of subclause 10(1)); and



·       the Internet content has been notified to Internet service providers under a designated notification scheme contained in an industry code or industry standard; and



·       the Classification Board reclassifies the Internet content; and



·       as a result of the reclassification, the Internet content ceases to be prohibited content (subclause 39(1)).

 

If a notification of Internet content is withdrawn under subclause 39(1) and an industry code or industry standard deals with the matters referred to in subclause 56(2) (which relates to procedures which Internet service providers will follow in dealing with overseas hosted Internet content notified by the ABA under a designated notification scheme set out in an industry code), the ABA will be required to notify the withdrawal to Internet service providers under the designated notification scheme (see clause 2) set out in the code or standard  (subclause 39(2)).

 

Clause 40 - Withdrawal of notification of content--reclassification of Internet content that consists of a film or a computer game

 

The notification of Internet content will be taken to have been withdrawn if:

 

·       Internet content consists of the entire unmodified contents of a flim or a computer game (see clauses 2 and 4); and



·       the Classification Board reclassifies the film or computer game under the Classification (Publications, Films and Computer Games) Act 1995 ; and



·       the Internet content has been notified to Internet service providers under a designated notification scheme contained in an industry code or industry standard; and



·       as a result of the reclassification, the Internet content ceases to be prohibited content (subclause 40(1)).



If a notification of Internet content is withdrawn under subclause 40(1) and an industry code or industry standard deals with the matters referred to in subclause 56(2) (which relates to procedures which Internet service providers will follow in dealing with overseas hosted Internet content notified by the ABA under a designated notification scheme set out in an industry code), the ABA will be required to notify the withdrawal to Internet service providers under the designated notification scheme (see clause 2) set out in the code or standard  (subclause 40(2)).

 

Clause 41 - Revocation of standard access-prevention notice--reclassification of Internet content

 

The ABA will be deemed to have revoked a standard access-prevention notice (see paragraph 37(1)(c)) if:

 

·       Internet content has been classified by the Classification Board under proposed Schedule 5 to the BSA (otherwise than because of subclause 10(1)); and



·       a particular Internet service provider is subject to a standard access-prevention notice relating to the Internet content; and



·       the Classification Board reclassifies the Internet content; and



·       as a result of the reclassification, the content ceases to be prohibited content (subclause 41(1)).

 

If a standard access-prevention notice is revoked under clause 41, the ABA will be required to give the Internet service provider concerned a written notice stating that the standard access-prevention notice has been revoked (subclause 41(2)).  Clause 47 deals with the circumstances in which the ABA may be deemed to have given a notice under subclause 41(2).

 

Clause 42 - Revocation of standard access-prevention notice--reclassifiction of Internet content that consists of a film or a computer game

 

The ABA will be deemed to have revoked a standard access-prevention notice (see paragraph 37(1)(c)) if:

 

·       Internet content consists of the entire unmodified contents of a film or a computer game (see clauses 2 and 4); and



·       the Classification Board reclassifies the film or computer game under the Classification (Publications, Films and Computer Games) Act 1995 ; and



·       a particular Internet service provider is subject to a standard access-prevention notice relating to the Internet content; and



·       as a result of the reclassification, the Internet content ceases to be prohibited content (subclause 42(1)).

 

If a standard access-prevention notice is revoked under clause 42, the ABA will be required to give the Internet service provider concerned a written notice to this effect (subclause 42(2)).  Clause 47 deals with the circumstances in which the ABA may be deemed to have given a notice under subclause 42(2).

 

Clause 43 - Anti-avoidance--notified Internet content

 

As an anti-avoidance mechanism, clause 43 provides that if:

 

·       particular Internet content has been notified to Internet service providers under a designated notification scheme contained in an industry code or industry standard; and



·       the notification has not been withdrawn; and



·       the ABA is satisfied that substantially similar Internet content host is being hosted outside Australia; and



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



·       an industry code or an industry standard under Part 5 of proposed Schedule 5 deals with the matters referred to in subclause 56(2) (which relates to procedures which Internet service providers will follow in dealing with overseas hosted Internet content notified by the ABA under a designated notification scheme set out in an industry code);

 

the ABA will required to notify the similar Internet content to Internet service providers under the designated notification scheme (see clause 2) set out in the code or standard (subclause 43(1)).

 

The use of the term ‘substantially similar’ is intended to convey the idea that the content must be similar in substance to content about which the Classification Board’s notice expressed concerns.  For example, if a picture hosted on a web site were classified because a particular part or aspect of the picture was offensive, then the ABA’s focus in using this provision would be on whether that concern about the picture had been addressed.

 

If:

 

·       particular Internet content is notified to Internet service providers under a designated notification scheme contained in an industry code or industry standard; and



·       as a result of the application of subclause 43(1) to that content, the ABA notifies similar Internet content to Internet service providers in accordance with subclause 43(1); and



·       the notification of the first-mentioned content is withdrawn;

 

the notification of the similar Internet content will be taken to have been withdrawn (subclause 43(2)).



If a notification of Internet content is withdrawn under subclause 43(2) and an industry code or industry standard deals with the matters referred to in subclause 56(2), the ABA will be able to notify the withdrawal to Internet service providers under the designated notification scheme set out in the code or standard (subclause 43(3)).

 

Clause 44 - Anti-avoidance--special access-prevention notice

 

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 (subclause 44(1)). 

 

Clause 47 sets out the circumstances in which the ABA may be deemed to have given a notice under clause 44.

 

The ABA’s decision to give an Internet service provider a special access-prevention notice will be reviewable by the AAT on the application of the relevant Internet service provider concerned (paragraph 88(1)(f) and subclause 88(2)).

 

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) and such other matters as are relevant (subclauses 44(2) and (3)).

 

Clause 45 - Compliance with access-prevention notices

 

An Internet service provider will be required 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 (subclauses 45(1) and (2)).

 

These requirements are online provider rules (see clause 75).  Accordingly, an Internet service provider who fails to comply with a standard access-prevention notice or a special access-prevention notice that applies to the provider in accordance with clause 45 will be subject to an offence under clause 78 and to a continuing offence under clause 82.

 

Clause 46 - Notification of Internet content

 

Clause 46 provides that Internet content will be able to be notified in accordance with Division 4 of Part 4 of proposed Schedule 5 to the BSA by setting out the content, describing the content or in any other way.

 

Clause 47 - ABA may be taken to have issued access-prevention notices

 

The ABA will be empowered to formulate a scheme, by disallowable instrument:



·       in the nature of a scheme for substituted service (eg. publication in a national newspaper by some other means (such as on a website, with or without security measures) without the need to physically serve the notice);



·       under which the ABA will be deemed, for the purposes of proposed Schedule 5 to the BSA, to have done any or all of the following:



-     given each Internet service provider a standard access-prevention notice under paragraph 37(1)(c) of proposed Schedule 5;



-     in a case where such a notice is revoked under clause 41 or 42 - given each      Internet service provider a notice of revocation under subclause 41(2) or 42(2);



-     given each Internet service provider a special access-prevention notice under     clause 44 (subclauses 47(1) and (3)).

 

Paragraph 37(1)(c) of proposed Schedule 5 to the BSA will have effect, in relation to a scheme under subclause 47(1), as if the reference in paragraph 37(1)(c) to each Internet service provider known to the ABA were a reference to each Internet service provider (subclause 47(2)).

 

Part 5--Industry codes and industry standards

 

Part 5 of proposed Schedule 5 to the BSA sets out rules for the development of self-regulatory industry codes by bodies and associations that represent sections of the Internet industry.  The ABA will have a reserve power to make a mandatory industry standard if the industry is unwilling to make such codes or such codes are deficient.  This Part operates independently of the program codes and standards provisions for the broadcasting industry made under Part 9 of the BSA.

 

Division 1--Simplified outline

 

Clause 48 - Simplified outline

 

Clause 48 contains a simplified outline of Part 5 of proposed Schedule 5 to the BSA (which deals with the development of industry codes and industry standards) to assist readers.

 

Division 2--Interpretation

 

Clause 49 - Industry codes

 

Clause 49 provides that for the purposes of Part 5, an industry code will be a code developed under Part 5, whether or not in response to a request under Part 5.  Codes will be developed by bodies and associations that represent sections of the Internet industry.

 

Clause 50 - Industry standards

 

Clause 50 defines an industry standard as a standard determined under Part 5.  Standards will be determined by the ABA if there are no industry codes or if an industry code is deficient.

 

Clause 51 - Internet activity

 

Clause 51 defines an Internet activity for the purposes of Part 5.  An Internet activity is an activity that consists of supplying an Internet carriage service or hosting Internet content in Australia.

 

These are the activities to which industry codes and industry standards under Part 5 may relate.

 

Clause 52 - Sections of the Internet industry

 

Clause 52 defines a section of the Internet industry for the purposes of Part 5.  Internet service providers and Internet content hosts will be sections of the Internet industry.

 

Such sections are used so that codes will be developed by, and applied to, relevant sections and requests for codes by the ABA (clause 59) may be directed to representatives of relevant sections. 

 

The definition of ‘industry sections’ is important in ensuring that it is clear for compliance and enforcement purposes to whom a particular code or standard applies.

 

Clause 53 - Participants in a section of the Internet industry

 

Clause 53 provides that a participant is a person who is a member of a group that constitutes a section of the Internet industry under Part 5.  This provision establishes a link between persons and industry sections and is important for compliance and enforcement purposes.

 

Clause 54 - Designated body

 

Clause 54 empowers the Minister, by written instrument, to declare that a specified body or association is the designated body for the purposes of Part 5.  Such a declaration will have effect accordingly and will be a disallowable instrument.  Accordingly, it must be notified in the Commonwealth Gazette , tabled in the Parliament and will be subject to Parliamentary disallowance.

 

Before registering an industry code, the ABA will be required to be satisfied that any such designated body has been consulted about the development of the code (see paragraph 58(1)(g)).  The ABA will also be required to consult any such designated body before determining, varying or revoking an industry standard (see clause 73).

 

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.

 

Division 3—General principles relating to industry codes and industry standards

 

Clause 55 - Statement of regulatory policy

 

Clause 55 is a statement of the Parliament’s regulatory policy and provides important guidance to the ABA in performing its functions under Part 5.

 

Subclause 55(1) provides that it is the Parliament’s intention that bodies or associations that the ABA is satisfied represent the Internet content host section of the Internet industry should develop a single industry code that it so apply to participants in that section of the industry in relation to the Internet activities of the participants.

 

Subclause 55(2) provides that it is the Parliament’s intention that bodies or associations that the ABA is satisfied represent the Internet service provider section of the Internet industry should develop no more than 2 industry codes that are to apply to participants in that section of the industry in relation to the Internet activities of the participants.

 

These subclauses reflect the self-regulatory objective of the code-standard regime.  An industry body or association set up to represent an industry section does not need to be incorporated to develop a code. 

 

Subclause 55(3) provides that it is the Parliament’s intention that, for the Internet service provider section of the Internet industry, one of those industry codes should deal exclusively with the matters set out in subclause 56(2) (which relates to procedures which Internet service providers will follow in dealing with overseas hosted Internet content notified by the ABA under a designated notification scheme set out in an industry code).

 

Subclause 55(4) provides that it is the Parliament’s intention that the ABA should make reasonable efforts to ensure that, for each section of the Internet industry, either an industry code is registered under Part 5 of proposed Schedule 5 before 1 January 2000 or an industry standard is registered under that Part before 31 March 2000.  The later date for possible determination of an ABA standard is intended to reflect the co-regulatory intent of the Bill in which industry is given an opportunity to develop its own procedures before any regulatory intervention by the ABA.

 

In relation to notified overseas-hosted Internet content that the ABA is satisfied is prohibited content or potential prohibited content, clause 37(1)(c) provides that until a separate industry code is registered, Internet service providers will be required to take all reasonable steps to prevent access to the content.

 

Clause 56 - Matters that must be dealt with by industry codes and industry standards

 

Subclause 56(1) 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 matters set out in that subclause. 

 

These matters include procedures directed towards the achievement of the objective of ensuring  that online accounts are not provided to children without the consent of a parent or responsible adult; procedures to be followed in order to assist parents and responsible adults to supervise and control children’s access to Internet content and the procedures to be followed in order to inform producers of Internet content about their legal responsibilities in relation to that content.

 

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).

 

Subclause 56(3) provides that clause 56 does not, by implication, limit the matters that industry codes and industry standards may deal with.

 

Clause 57 - Industry codes and industry standards not to deal with certain matters

 

Clause 57 provides that for the purposes of Part 5, an industry code or an industry standard that deals with a particular matter will have no effect to the extent (if any) to which the matter is dealt with by an industry code or an industry standard under Part 6 of the Telecommunications Act 1997 or the Telecommunications Industry Ombudsman scheme under Part 10 of that Act.

 

Division 4--Industry codes

 

Clause 58 - Registration of industry codes

 

Clause 58 will enable a body or association representing a section of the Internet industry to submit a draft industry code that applies to participants of the section and deals with one or more matters relating to the Internet activities of that section, to the ABA for registration.

 

Subclause 58(1) requires the ABA to register an industry code if the ABA is satisfied that:

 

·       the code provides appropriate community safeguards or deals with the matters in an appropriate manner, depending on the nature of the matters and is consistent with the statements of regulatory policy in clause 55 and the requirements of clause 56 for the code to include certain matters;

·       the body or association has published a draft code, invited participants in the relevant  section of the Internet industry to make submissions within a period of at least 30 days (subclause 58(3)) and considered any submissions;

·       the body or association has published a draft code, invited members of the public to make submissions within a period of at least 30 days (subclause 58(3)) and considered any submissions; and

·       any designated body (see clause 54) has been consulted about the development of the code.

The public comment requirements are additional to any opportunities the industry may provide for the involvement of the public or consumer representatives in the code development process.

 

Subclause 58(4) provides that when a new code is registered under Part 5 and it is expressed to replace another industry code, the other code ceases to be registered.

 

A decision to refuse to register a code is subject to AAT review on the application of the body or association that developed the code(see subclauses 88(3) and (4)).

 

Clause 59 - ABA may request codes

 

Clause 59 performs the function of being a formal trigger for the development of an industry code.  The failure to develop the code which has been requested provides a ground for the ABA to develop an industry standard (clause 64).  That provision has the effect of preventing the ABA developing an industry standard before the industry has an opportunity to develop a code.

 

Clause 59 provides that if the ABA is satisfied that a body or association represents a particular section of the Internet industry, it may request them to develop a code that would apply to participants of the section and deals with one or more specified matters.  The ABA must specify a period of at least 120 days for a code to be developed and a copy be given to it. 

 

The ABA will not be permitted to make a request under clause 59 unless it is satisfied that the development of the code is necessary or convenient to provide appropriate community safeguards or otherwise deal with the performance or conduct of participants in that industry section, and it is unlikely that an industry code would be developed within a reasonable period without such a request.

 

The ABA will be able to vary the request by extending the period (subclause 59(4)).  This will not, by implication, limit the application of subsection 33(3) of the Acts Interpretation Act 1901 which provides that where an Act confers a power to make an instrument, the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to revoke or vary any such instrument (subclause 59(5)).

 

The ABA’s notice under subclause 59(1) will be able to specify indicative targets for achieving progress in developing the code.  The targets are binding and may be used to guide the timing of the development process (subparagraph 64(1)(b)(ii)).

 

Clause 60 - Publication of notice where no body or association represents a section of the Internet industry

 

Clause 60 provides that if the ABA is satisfied that there is no body or association in existence that represents a particular industry section, it may publish a notice in the Commonwealth Gazette to the effect that if such a body were to come into existence, the ABA would be likely to request it to develop a code under clause 59 about the matters in the notice.  The notice must set a period of at least 60 days for the section to establish a representative body.

 

If no such body or association is formed within the period set out in the notice, this would be a consideration in whether an industry standard would be made under clause 65.  Again, the provision has the effect of preventing the ABA developing an industry standard before industry has an opportunity to develop a code.

 

Clause 61 - Replacement of industry codes

 

Clause 61 provides that changes to industry codes are to be achieved by replacement of the code.  However, when the changes are of a minor nature, the requirements for consultation with participants in the section and the public in paragraphs 58(1)(e) and (f) of proposed Schedule 5 to the BSA will not apply to the registration process.  This will limit consultation to when matters of substance arise and facilitate the making of minor changes to registered codes.

 

Clause 62 - Compliance with industry codes

 

Clause 62 provides that participants in a particular section of the Internet industry must comply with any ABA direction to comply with an industry code registered under Part 5 that applies to them.

 

This requirement is an online provider rule (see clause 75).  Contravention of online provider rules is an offence (clause 78) and a continuing offence (clause 82).

 

The ABA’s decision to give, vary or refuse to revoke a direction to an Internet service provider or an Internet content host will be reviewable by the AAT on the application of the Internet service provider or the Internet content host concerned (paragraph 88(1)(g) and subclause 88(2)).

 

Clause 63 - Formal warnings--breach of industry codes

 

Clause 63 provides that if an industry participant contravenes an industry code, the ABA may issue a formal warning to the industry participant.  It is intended to enable the ABA to formally indicate its concerns about a contravention of a code to a person.  Such a warning may be a precursor to the taking of enforcement action under clauses 78, 81 and 82.  However, in the case of a serious, flagrant or recurring breach, the ABA may decide to institute enforcement action without giving a prior formal warning.

 

Division 5--Industry standards

 

Clause 64 - ABA may determine an industry standard if a request for an industry code is not complied with

 

Clause 64 will enable the ABA to make a standard where it has requested industry to develop a code and it has failed to do so or to have made satisfactory progress.  The provision works in tandem with clause 59.  It prevents the ABA from making a standard before an industry section has had an appropriate opportunity to develop a code.

 

Clause 64 provides that, if the ABA requests a code to be developed by a particular section of the Internet industry under subclause 59(1) and this request has not been complied with; indicative targets have not been met; or a code has been developed that the ABA subsequently refused to register, then the ABA may determine an industry standard if it is satisfied that it is necessary or convenient to do so to provide appropriate community safeguards or otherwise regulate adequately that industry section.

 

Subclause 64(3) requires the ABA to consult the body or association to which it made the request before determining an industry standard. 

 

Subclause 64(4) provides that a standard is a disallowable instrument for the purposes of the Acts Interpretation Act 1901 which accordingly must be notified in the Commonwealth Gazette , tabled in the Parliament and will be subject to Parliamentary disallowance.

 

Subclause 64(5) empowers the Minister to give the ABA a written direction as to the exercise of its powers under clause 123.

 

Clause 65 - ABA may determine industry standard where no industry body or association formed

 

Clause 65 enables the ABA to make a standard where no industry representative body has been established.  The provision works in tandem with clause 60.  It prevents the ABA from making a standard before an industry section has had an appropriate opportunity to develop a code.

 

If the ABA is satisfied that a particular section of the Internet industry is not represented by a body or association, has published a notice under subclause 60(1) and no such body or association comes into existence within the period in the notice, then the ABA may determine an industry standard if it is satisfied that it is necessary or convenient to do so to provide appropriate community safeguards or otherwise regulate adequately that industry section. 

 

Subclause 65(3) provides that such a standard is a disallowable instrument for the purposes of the Acts Interpretation Act 1901 which accordingly must be notified in the Commonwealth Gazette , tabled in the Parliament and will be subject to Parliamentary disallowance.

 

Subclause 65(4) empowers the Minister to give the ABA a written direction as to the exercise of its powers under clause 65.

 

Clause 66 - ABA may determine industry standards--total failure of industry codes

 

Clause 66 enables the ABA to make a standard where a code has totally failed.  It prevents the ABA from making a standard before a code has proven to be ineffective.

 

If the ABA is satisfied that an industry code is totally deficient; a written notice has been given to the developer of a code to address these deficiencies within a period of at least 30 days; and after that period the ABA is satisfied that it is necessary or convenient to determine a standard, the ABA may determine an industry standard.  This clause only applies to codes registered for at least 180 days to ensure that the implementation of a code has had adequate time before its success is judged and is intended to reinforce the preference for successful industry self-regulation. 

 

If the ABA is satisfied that a body or association represents that industry section, subclause 66(4) requires the ABA to consult with the body or association before determining an industry standard.  The industry code ceases to be registered on the day the industry standard comes into force (subclause 66(6)). 

 

Subclause 66(5) provides that such a standard is a disallowable instrument for the purposes of the Acts Interpretation Act 1901 which accordingly must be notified in the Commonwealth Gazette , tabled in the Parliament and will be subject to Parliamentary disallowance.

 

An industry code is totally deficient if, and only if, it is not operating to provide appropriate community safeguards or not otherwise operating to regulate adequately the relevant industry section (subclause 66(7)).

 

Subclause 66(8) empowers the Minister to give the ABA a written direction as to the exercise of its powers under clause 66.

 

Clause 67 - ABA may determine industry standards--partial failure of industry codes

 

Clause 67 enables the ABA to make a standard where a code has partially failed.  It prevents the ABA from making a standard before a code has proven to be ineffective.  It is intended to provide flexibility in the scheme dealing with industry codes and industry standards.  It is anticipated that the ABA would make use of this provision only as a last resort.

 

If the ABA is satisfied that an industry code is partially but not totally deficient; a written notice has been given to the developer of a code to address these deficiencies within a period of at least 30 days; and after that period the ABA is satisfied that it is necessary or convenient to determine a standard, the ABA may determine an industry standard.  This clause only applies to codes registered for at least 180 days to ensure that the implementation of a code has had adequate time before its success is judged and is intended to reinforce the preference for successful industry self-regulation. 

 

If the ABA is satisfied that a body or association represents that industry section, subclause 67(4) requires the ABA to consult with the body or association before determining an industry standard.  The deficient matters in industry code ceases to have effect on the day the industry standard comes into force.  This does not, however, affect the continuing registration of the remainder of the code or any pre-existing investigation, proceeding or remedy in respect of a contravention of the code or of an ABA direction to comply with the code (subclause 67(6)). 

 

Subclause 67(5) provides that such a standard is a disallowable instrument for the purposes of the Acts Interpretation Act 1901 which accordingly must be notified in the Commonwealth Gazette , tabled in the Parliament and will be subject to Parliamentary disallowance.

 

An industry code is deficient if, and only if, it is not operating to provide appropriate community safeguards in relation to a matter or not otherwise operating to regulate adequately the relevant industry section in relation to that matter (subclause 67(7)).

 

Subclause 67(8) empowers the Minister to give the ABA a written direction as to the exercise of its powers under clause 67.

 

Clause 68 - Compliance with industry standards

 

Clause 68 provides that participants in a particular section of the Internet industry must comply with any industry standard registered under Part 5 that applies to them.

 

This requirement is an online provider rule (see clause 75).  Contravention of online provider rules is an offence (clause 78) and a continuing offence (clause 82).

 

Clause 69 - Formal warnings--breach of industry standards

 

Clause 69 provides that if an industry participant contravenes an industry standard, the ABA may issue a formal warning to the industry participant.  It is intended to enable the ABA to formally indicate its concerns about a contravention of a standard to a person.  Such a warning may be a precursor to the taking of enforcement action under clauses 78, 81 and 82.  However, in the case of a serious, flagrant or recurring breach, the ABA may decide to institute enforcement action without giving a prior formal warning.

 

Clause 70 - Variation of industry standards

 

Clause 70 provides that the ABA will be able to vary an industry standard if it is satisfied that it is necessary or convenient to do so to provide appropriate community safeguards or otherwise adequately regulate participants.

 

A variation will be a disallowable instrument for the purposes of the Acts Interpretation Act 1901 and accordingly must be notified in the Commonwealth Gazette , tabled in the Parliament and will be subject to Parliamentary disallowance.

 

Clause 71 - Revocation of industry standards

 

Clause 71 provides that the ABA will be able to revoke an industry standard by written instrument.

 

An instrument of revocation will be a disallowable instrument for the purposes of the Acts Interpretation Act 1901 and accordingly must be notified in the Commonwealth Gazette , tabled in the Parliament and will be subject to Parliamentary disallowance.

 

If an industry code is developed by a section of the industry to replace an industry standard, the industry standard is revoked when the new code is registered.  The process by which the code will be registered will ensure the code provides appropriate community safeguards or otherwise deals with its subject matter in an appropriate manner.

 

Clause 72 - Public consultation on industry standards

 

Clause 72 provides that, before the ABA determines or varies a standard, it must publish a notice in a newspaper circulating in each State and the internal Territories seeking public comment on a draft industry standard within 30 days of the publication of the notice.  Minor variations are exempted from this requirement (subclause 72(3)).

 

The ABA must have due regard to any comments made (subclause 72(4)).

 

Clause 73 - Consultation with designated body

 

Clause 73 provides that before determining, varying or revoking an industry standard, the ABA must consult any designated body (see clause 54).

 

Division 6--Register of industry codes and industry standards

 

Clause 74 - ABA to maintain Register of industry codes and industry standards

 

Clause 74 provides for the establishment and maintenance by the ABA of a Register of industry codes and standards, requests under clause 59, notices under clause 60 and ABA directions under clause 62.  The Register may be maintained in electronic form and is to be made available for inspection on the Internet.

 

The maintenance of the Register is intended to provide industry and the public with ready information about the codes and standards that are in force.

 

Part 6--Online provider rules

 

Clause 75 - Online provider rules

 

Clause 75 provides that for the purposes of proposed Schedule 5 to the BSA, each of the following is an online provider rule:

 

·       the rules set out in subclauses 35(1) to (3), which 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;

 

·       the rule set out in subclause 35(4), which requires an Internet content host to comply with an undertaking given to, and accepted by, the ABA under clause 31;



·       the rules set out in subclauses 45(1) and (2), which require an Internet service provider to comply with any standard access-prevention notice (see paragraph 37(1)(c)) or any 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;



·       the rule set out in subclause 62(2), which requires a participant in a particular section of the Internet industry that has contravened, or is contravening, a relevant registered industry code to comply with any ABA direction to comply with the code;



·       the rule set out in clause 68, which requires participants in a particular section of the Internet industry to comply with any industry standard registered under Part 5 that applies to them; and



·       each of the rules (if any) set out in an online provider determination in force under clause 76.

 

Under clauses 78 and 82, a person subject to online provider rules who contravenes any of those rules will be guilty of an offence and a continuing offence for each day during which the contravention continues.

 

Clause 76 - Online provider determinations

 

Clause 76 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.

 

Online provider determinations will have effect only to the extent that they are authorised:

 

·       by paragraph 51(v) (either alone or when read together with paragraph 51(xxxix)) of the Constitution; or

 

·       by section 122 of the Constitution if it would have been authorised by paragraph 51(v) (either alone or when read together with paragraph 51(xxxix)) if section 51 extended to the Territories.

 

Paragraph 51(v) of the Constitution gives the Parliament the power to make laws with respect to postal, telegraphic, telephonic and other like services.  Paragraph 51(xxxix) of the Constitution gives the Parliament the power to make laws with respect to matters incidental to the execution of any power vested in the Constitution.  Section 122 of the Constitution gives the Parliament the power to make laws in relation to the Territories. 

 

The ABA will not be able to make an online provider determination if the determination relates to a matter specified in regulations in force for the purposes of subsection 99(3) of the Telecommunications Act 1997 .

 

An online provider determination will be able to empower the ABA to make decisions of an administrative character (subclause 76(6)).

 

If the ABA makes a decision of an administrative character under an online provider determination that relates to an Internet service provider or an Internet content host, the AAT will be able to review the decision on the application of the Internet service provider or Internet content host concerned (see paragraph 88(1)(h) and subclause 88(2)).

 

Clause 77 - Exemptions from online provider determinations

 

The Minister will be empowered to determine that a specified Internet service provider is exempt from all (subclause 77(1)) or specified (subclause 77(2)) online provider determinations.

 

Internet service providers and service provider determinations may be specified individually, in a class, or in any other way (see subsection 46(2) of the Acts Interpretation Act 1901 ).

 

A determination made under clause 77 will be able to be unconditional or conditional, and will be a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .  It will therefore be required to be notified in the Commonwealth Gazette , tabled in the Parliament and will be subject to Parliamentary disallowance.

 

Clause 78 - Compliance with online provider rules

 

Clause 78 provides that a person subject to an online provider rule who contravenes the rule will be guilty of an offence subject to a maximum penalty of 50 penalty units in the case of an individual and 250 penalty units in the case of a body corporate (see subsection 4B(3) of the Crimes Act 1914 (Cth)).  A penalty unit equals $110 (see section 4AA of the Crimes Act 1914 (Cth)).

 

A contravention of the online provider rules will also be a continuing offence in respect of each day during which the contravention continues (see clause 82).

 

Clause 79 - Remedial directions--breach of online provider rules

 

Clause 79 will apply if an Internet service provider or an Internet content host has contravened, or is contravening, an online provider rule.

 

The ABA will be empowered to give the Internet service provider or Internet content host a written direction requiring the provider or host to take specified action (including the compliance time for this action) directed towards ensuring that the rule is not contravened, or is not likely to be contravened, in the future. 

 

Subclause 79(3) gives two examples of the kinds of directions which the ABA may give under subclause 79(2):

 

·       a direction that the provider or host implement effective administrative systems for monitoring compliance with an online provider rule; and

 

·       a direction that the provider or host implement a system designed to inform its employees, agents and contractors of the requirements of an online provider rule. 

 

Subclause 79(4) provides that a person subject to a remedial direction who contravenes the direction will be guilty of an offence subject to a maximum penalty of 50 penalty units in the case of an individual and 250 penalty units in the case of a body corporate (see subsection 4B(3) of the Crimes Act 1914 (Cth)).  A penalty unit equals $110 (see section 4AA of the Crimes Act 1914 (Cth)).

 

A contravention of a remedial direction will also be a continuing offence in respect of each day during which the contravention continues (see clause 82).

 

The ABA’s decision to give, vary or refuse to revoke a direction that is applicable to an Internet service provider or an Internet content host will be reviewable by the AAT on the application of the Internet service provider or the Internet content host concerned (paragraph 88(1)(g) and subclause 88(2)).

 

Clause 80 - Formal warnings--breach of online provider rules

 

Clause 80 will allow the ABA to issue a formal warning if a person contravenes an online provider rule.

 

Clause 81 - Federal Court may order a person to cease supplying Internet carriage services or cease hosting Internet content

 

If the ABA is satisfied that an Internet service provider is supplying an Internet carriage service, or an Internet content host is hosting Internet content in Australia, otherwise than in accordance with an online provider rule, the ABA will be able to apply to the Federal Court for an order that the provider or host cease supplying that service or cease hosting that content, as the case requires (subclause 81(1)).

 

If the Federal Court is satisfied, on such an application, that the Internet service provider is supplying an Internet carriage service, or the Internet content host is hosting Internet content in Australia, otherwise than in accordance with the online provider rule, it will be able to order the provider to cease supplying that service or the host to cease hosting that content in Australia, as the case requires (subclause 81(2)).

 

Part 7--Offences

 

Clause 82 - Continuing offences

 

Clause 82 provides that a person who contravenes:

 

·       clause 78, which provides that a person subject to an online provider rule who contravenes the rule will be guilty of an offence; and



·       subclause 79(4), which provides that a person subject to a remedial direction who contravenes the direction will be guilty of an offence;

 

will be guilty of a separate offence in respect of each day (including the day of a conviction for the offence or any later day) during which the contravention continues.

 

Clause 83 - Conduct by directors, employees and agents

 

If a body corporate (such as a company) has committed an ancillary offence relating to proposed Schedule 5 to the BSA (see subclause 83(9)) and it is necessary in proceedings to establish the state of mind of the body corporate, it will be sufficient to show that:

 

·       a director, employee or agent of the body corporate, acting within the scope of his or her authority, engaged in that conduct; and



·       the director, employee or agent had that state of mind (subclause 83(1)).



If conduct is engaged in on behalf of a body corporate by a director, employee or agent of the body corporate and the conduct is within the scope of his or her authority, the conduct will be taken, for the purposes of a prosecution for an offence under proposed Schedule 5 to the BSA or an ancillary offence relating to that Schedule, to have been engaged in by the body corporate unless the body corporate establishes that it took reasonable precautions and exercised due diligence to avoid the conduct (subclause 83(2)).

 

If, in proceedings for an ancillary offence relating to proposed Schedule 5 to the BSA in respect of conduct engaged in by a person other than a body corporate, it is necessary to establish the state of mind of the person, it will be sufficient to show that the conduct was engaged in by an employee or agent of the person within the scope of his or her authority and the employee or agent had that state of mind (subclause 83(3)).

 

If conduct is engaged in on behalf of a person other than a body corporate by an employee or agent of the person and the conduct is within the scope of his or her authority, the conduct will be taken, for the purposes of a prosecution for an offence against proposed Schedule 5 or an ancillary offence relating to the Schedule, to have been engaged in by the person unless the person establishes that he or she took reasonable precautions and exercised due diligence to avoid the conduct (subclause 83(4)).

 

If a person other than a body corporate is convicted of an offence for which the person would not have been convicted if subclauses 83(3) and (4) had not been in force, the person will not be liable to be punished by imprisonment for that offence (subclause 83(5)).

 

For the purposes of subclause 83(1) and (3), the state of mind of a person will include the person’s knowledge, intention, opinion, belief or purpose and the person’s reasons for the intention, opinion, belief or purpose (subclause 83(6)).

 

A reference in clause 83 to a director of a body corporate will include a reference to a constituent member of a body corporate incorporated for a public purpose by Commonwealth, State or Territory law such as a member of a statutory authority or Government Business Enterprise (subclause 83(7)).

 

A reference in clause 83 to ‘engaging in conduct’ will include a reference to refusing to engage in conduct (subclause 83(8)).

 

A reference in clause 83 to ‘an ancillary offence relating to this Schedule’ will include a reference to an offence created by:

 

·       section 5 of the Crimes Act 1914 , dealing with aiders and abettors;



·       section 6 of the Crimes Act 1914 , dealing with persons who are accessories after the           fact;



·       section 7 of the Crimes Act 1914 , dealing with attempts to commit offences against Commonwealth laws;



·       section 7A of the Crimes Act 1914 , dealing with inciting or urging the commission of offences against Commonwealth laws; or



·       subsection 86(1) of the Crimes Act 1914 , dealing with conspiracy to commit an offence against a law of the Commonwealth;



that relates to proposed Schedule 5 to the BSA (subclause 83(9)).

 

Part 8--Protection from civil and criminal proceedings

 

Clause 84 - Protection from civil proceedings--Internet service providers and Internet content hosts

 

Internet service providers will be protected from civil proceedings (for example, for breach of contract or defamation) in respect of anything done by them in compliance with:



·       an industry code or an industry standard under Part 5 of proposed Schedule 5 to the BSA in so far as the code or standard deals with procedures to be followed by providers in dealing with Internet content notified under a designated notification scheme set out in the code or standard (subclause 84(1)); or



·       clause 45 which requires an Internet service provider to comply with a standard access-prevention notice or a special access-prevention notice that applies to the provider as soon as practicable, and in any event within 24 hours, after the notice was given to the provider (subclause 84(2)).

 

Internet content hosts will be protected from civil proceedings in respect of anything done by them in compliance with clause 35 (subclause 84(3)) which requires 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;



·       any undertaking given to the ABA by the host and accepted by the ABA under clause 31 (see subclause 35(4)).

 

Clause 85 - Protection from criminal proceedings--ABA, Classification Board and Classification Review Board

 

Clause 85 protects certain persons from criminal proceedings in certain circumstances.

 

Subclause 85(1) sets out the persons who are protected.  These persons are the ABA, its members and associate members, staff and consultants and persons seconded to the ABA from another Commonwealth authority; a member or temporary member of the Classification Board, its staff and consultants and persons seconded to the Classification Board from a Commonwealth authority; and a member of the Classification Review Board.

 

Subclause 85(2) provides that criminal proceedings will not be able to be brought against these persons for or in relation to:

 

·       the collection, possession (including custody or control - see subclause 85(3)), distribution, delivery or copying of information or material; or



·       the doing of any other thing in relation to information or material;

 

in connection with the exercise of a power, or the performance of a function, conferred on the ABA, the Classification Board or the Classification Review Board by proposed Schedule 5 to the BSA.

 

Part 9--Operation of State and Territory laws etc.

 

Clause 86 - Concurrent operation of State and Territory laws

 

Clause 86 provides that it is the intention of the Parliament that proposed Schedule 5 to the BSA is to apply in addition to State and Territory legislation (such as crimes or censorship legislation) that is capable of operating concurrently with Schedule 5.

 

Clause 87 - Liability of Internet content hosts and Internet service providers under State and Territory laws etc.

 

Clause 87, in conjunction with clause 86, is intended to give practical effect to the principle that, in general, the Commonwealth will provide a nationally consistent framework for the regulation of the activities of Internet service providers and Internet content hosts, while the States and Territories will continue to carry primary responsibility for regulating content providers and users.

 

To achieve this, State or Territory legislation or a rule of common law or equity will have no effect to the extent to which it:

 

·       subjects, or would have the effect (whether direct or indirect) of subjecting, an Internet content host or an Internet service provider to civil or criminal liability in respect of hosting or carrying particular Internet content in a case where the host or provider was not aware of the nature of the Internet content; or



·       requires, or would have the effect (whether direct or indirect) of requiring, an Internet content host or Internet service provider to monitor, make inquiries about, or keep records of, Internet content hosted by the host or carried by the provider (subclause 87(1)).

 

The Minister will be able, by written instrument, to exempt a specified law, or a class of specified laws, of a State or Territory, or a specified rule, or a class of specified rules, of common law or equity, from the operation of subclause 87(1) (subclause 87(2)).  Such an exemption will be able to be unconditional or subject to such conditions (if any) as are specified in the exemption (subclause 87(3)).  This is intended to ensure that any unintended consequences of subclause 87(1) can be remedied.

 

The Minister will be able, by written instrument, to declare that a specified law, or a class of specified laws, of a State or Territory, or a specified rule, or a class of specified rules, of common law or equity, has no effect to the extent to which the law or rule has a specified effect in relation to an Internet content host or to an Internet service provider (subclauses 87(4) and (5)).

 

This is a fine tuning mechanism intended to deal with the situation where a State or Territory law has the direct or indirect effect of regulating the activities of an Internet service provider or Internet content host in a way that does not meet the objectives outlined above.

 

Ministerial declarations under subclauses 87(4) and (5) will have effect only to the extent that they are authorised:

 

·       by paragraph 51(v) (either alone or when read together with paragraph 51(xxxix)) of the Constitution; or

 

·       by section 122 of the Constitution if it would have been authorised by paragraph 51(v) (either alone or when read together with paragraph 51(xxxix)) if section 51 extended to the Territories (subclause 87(6)).

 

Paragraph 51(v) of the Constitution gives the Parliament the power to make laws with respect to postal, telegraphic, telephonic and other like services.  Paragraph 51(xxxix) of the Constitution gives the Parliament the power to make laws with respect to matters incidental to the execution of any power vested in the Constitution.  Section 122 of the Constitution gives the Parliament the power to make laws in relation to the Territories. 

 

Subclause 87(7) provides that a Ministerial exemption under subclause 87(2) and a Ministerial declaration under subclause 87(4) or (5) will be a disallowable instrument which accordingly must be notified in the Commonwealth Gazette , tabled in the Parliament and will be subject to Parliamentary disallowance.

 

Part 10--Review of decisions

 

Clause 88 - Review by the AAT

 

Clause 88 of proposed Schedule 5 to the BSA provides for the review of certain decisions by the AAT under that Schedule.

 

The ABA’s decision to give an Internet content host an interim take-down notice (see subclause 28(2)) will be reviewable by the AAT on the application of the Internet content host concerned (paragraph 88(1)(a) and subclause 88(2)).

 

The ABA’s decision to give an Internet content host a final take-down notice (see subclauses 28(1) and (4)) will be reviewable by the AAT on the application of the Internet content host concerned (paragraph 88(1)(b) and subclause 88(2)).

 

The ABA’s decision to give an Internet content host a special take-down notice (see clause 34) will be reviewable by the AAT on the application of the Internet content host concerned (paragraph 88(1)(c) and subclause 88(2)).

 

The ABA’s decision under paragraph 28(2)(b) to request the Classification Board to classify Internet content hosted in Australia by an Internet content host will be reviewable by the AAT on the application of the Internet content host concerned (paragraph 88(1)(d) and subclause 88(2)).

 

The ABA’s decision to issue standard access-prevention notice for the purposes of paragraph 37(1)(c) will be reviewable by the AAT on the application of the relevant Internet service provider concerned (paragraph 88(1)(e) and subclause 88(2)).

 

The ABA’s decision to give an Internet service provider a special access-prevention notice (see clause 44) will be reviewable by the AAT on the application of the relevant Internet service provider concerned (paragraph 88(1)(f) and subclause 88(2)).

 

The ABA’s decision to give, vary or refuse to revoke a direction to comply with an industry code (clause 62) or a remedial direction (clause 79) that is applicable to an Internet service provider or an Internet content host will be reviewable by the AAT on the application of the Internet service provider or the Internet content host concerned (paragraph 88(1)(g) and subclause 88(2)).

 

If the ABA makes a decision of an administrative character under an online provider determination that relates to an Internet service provider or an Internet content host, the AAT will be able to review the decision on the application of the Internet service provider or Internet content host concerned (see paragraph 88(1)(h) and subclause 88(2)).

 

An ABA decision to refuse to register a code is subject to AAT review on the application of the body or association that developed the code (see subclauses 88(3) and (4)).

 

Clause 89 - Notification of decisions to include notification of reasons and appeal rights

 

Clause 89 is based on section 205 of the BSA.  It provides that if the ABA makes a decision that is reviewable under clause 88, it must include in the document by which the decision is notified a statement setting out the reasons for the decision and a statement to the effect that an application may be made to the AAT for a review of the decision.

 

 

Part 11--Miscellaneous

 

Clause 90 - Additional ABA functions

 

Clause 90 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.

 

Clause 91 - Schedule not to affect performance of State or Territory functions

 

Clause 91 is a constitutional safeguard.  It provides that a power conferred by proposed Schedule 5 to the BSA must not be exercised in such a way as to prevent the exercise of the powers, or the performance of the functions, of government of a State, the Northern Territory, the Australian Capital Territory or Norfolk Island.

 

This will prevent any unintended interference with the legitimate governmental activities of the States or self-governing Territories (for example, their activities in relation to child welfare).

 

 

Schedule 2--Amendment of the Crimes Act 1914

 

Item 1 - Amendment of section 85ZE of the Crimes Act

 

Section 85ZE of the Crimes Act 1914 prohibits a person from knowingly or recklessly:

 

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

 

(b)        from using a carriage service supplied by a carrier in such as way as would be regarded by reasonable persons as being, in all the circumstances, offensive.

 

As a consequence of the Bill, item 1 of Schedule 2 to the Bill provides that paragraph 85ZE(1)(b) of the Crimes Act will not apply to the use of a carriage service to carry Internet content.  Section 85ZE is not, however, intended to limit or exclude the concurrent operation of any State or Territory legislation (such as crimes legislation).