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Online Safety Bill 2021

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 2019 - 2020 - 2021

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

SENATE

 

 

 

 

 

 

 

 

 

Online Safety Bill 2021

 

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

Amendments to be Moved on Behalf of the Government

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Communications, Urban Infrastructure, Cities and the Arts, the Hon Paul Fletcher MP)

 

 

 

 

 

 



 



 

 

ONLINE SAFETY BILL 2021

 

OUTLINE

 

The purpose of the Online Safety Bill (the Bill) is to create a new framework for online safety for Australians.

 

The Bill, together with the Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021, will create a modern, fit for purpose regulatory framework that builds on the strengths of the existing legislative scheme for online safety. In particular, the Bill will:

 

retain and replicate provisions in the Enhancing Online Safety Act 2015 (EOSA) that are working well to protect Australians from online harms, such as the non-consensual sharing of intimate images scheme;

·          articulate a core set of basic online safety expectations to improve and promote online safety for Australians;

reflect a modernised online content scheme to replace the schemes in Schedules 5 and 7 of the Broadcasting Services Act 1992 (BSA) to address harmful online content;

·          create a new complaints-based, removal notice scheme for cyber-abuse being perpetrated against an Australian adult;

·          broaden the cyber-bullying scheme to capture harms occurring on services other than social media;

·          reduce the timeframe for service providers to respond to a removal notice from the eSafety Commissioner from 48 to 24 hours;

·          bring providers of app distribution services and internet search engine services clearly into the remit of the new online content scheme;

·          establish a specific and targeted power for the eSafety Commissioner to request or require internet service providers (ISPs) to disable access to material depicting, promoting, inciting or instructing in abhorrent violent conduct, for time-limited periods in crisis situations, reflecting industry’s call for Government leadership on this issue.

 

This supplementary explanatory memorandum responds to concerns raised by the Senate Environment and Communications Legislation Committee in its report of its Inquiry into the Online Safety Bill 2021 and the Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021 of 12 March 2021.

 

The Government amendments include:

·          additional transparency requirements for the Commissioner’s annual report under clause 183 to include reports on investigations and the use of powers under the Bill;

·          new provisions requiring the Commissioner to establish an internal review scheme for decisions made by the Commissioner under the Bill and publish the scheme on the Commissioner’s website; and

·          amendments to the Explanatory Memorandum to address matters raised in consideration of the Bill by the Senate Environment and Communications Legislation Committee.

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FINANCIAL IMPACT STATEMENT

 

The Government amendments will not have any impact on the overall costings for the package of reforms.

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Online Safety Bill 2021

These amendments are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the amendments

 

The amendments propose:

 

·          additional transparency requirements for the Commissioner’s annual report under clause 183 to include reports on investigations and the use of powers under the Bill;

·          new provisions relating to the establishment of an internal review scheme by the Commissioner; and

·          amendments to the Explanatory Memorandum to address matters raised in consideration of the Bill by the Senate Environment and Communications Legislation Committee.

 

Human Rights Implications

A detailed Human Rights Statement was prepared for the Bill. This statement is amended to reflect the enhanced requirements for review of decisions proposed in the amendments :

 

Heading Image-based abuse, cyber-bullying and adult cyber-abuse

 

Page 57 before: 

 

The right to freedom of expression is further protected under the Bill in that end-users who are subject to notices regarding the removal of cyber-bullying material, adult cyber-abuse material and intimate image material, can appeal those decisions to the Administrative Appeals Tribunal, and have them reviewed by that Tribunal on their merits.

 

Add the following text

 

Individuals and organisations will be afforded due process and natural justice in relation to complying with notices under the Bill. The Bill provides that the Commissioner must have in place an internal review scheme through which providers and end-users may apply to the Commissioner for review of a decision to give or refuse to give a notice to remove cyber-bullying material, adult cyber-abuse material and intimate image material. The Commissioner must publish the internal review scheme on the Commissioner’s website.

 



 

Heading: In relation to the blocking power ,

 

Page 58 at the end of the section, add the following text:

 

ISPs are afforded a right of reply under the Bill in relation to blocking notices. The Bill provides that the Commissioner must have in place an internal review scheme through which ISPs may apply to the Commissioner for review of a decision to give a blocking notice. The Commissioner must publish the internal review scheme on the Commissioner’s website.

 

A decision to give a blocking notice under the Bill may also be brought before the Administrative Appeals Tribunal for merits review.

 

Heading In relation to the online content scheme,

 

Page 59 before the sentence beginning ‘Finally, clause 233 of the Bill’, add the following text:

 

Service providers are afforded a right of reply under the Bill in relation to certain notices given under the online content scheme. The Bill provides that the Commissioner must have in place an internal review process through which service providers may apply to the Commissioner for review of a decision to give a removal notice, remedial notice, link deletion notice or app removal notice under the online content scheme. The Commissioner must publish the internal review scheme on the Commissioner’s website.

 

A decision to give a removal notice, remedial notice, link deletion notice or app removal notice may also be brought before the Administrative Appeals Tribunal for merits review.

 

Conclusion

The amendments do not engage any human rights issues beyond those identified in the original Statement of Compatibility of Human Rights prepared for the Online Safety Bill.



AMENDMENTS TO THE ONLINE SAFETY BILL NOTES ON CLAUSES

 

Amendment item 1 Clause 181 Delegation by the Commissioner

 

Item 1 adds a subclause (4) to clause 181 to clarify that the Commissioner may not delegate the function or powers relating to formulation and varying of the internal review scheme to a member of the staff of the ACMA.

 

Amendment item 2 Clause 182 Delegation by the Commissioner a contractor engaged by the Commissioner

 

Item 2 inserts a subclause (3A) and a subclause (3B) after subclause 182(3) to provide that the Commissioner may not delegate to a contractor engaged by the Commissioner:

·          the function or powers relating to the formulation or varying of the internal review scheme (3A)

·          the function of power conferred by the internal review scheme (3B).

 

Amendment items 3 and 4 ­Clause 183 Annual Report

 

Items 3 and 4 amend clause 183 to include specific requirements for inclusion in the Commissioner’s annual report for a financial year. These are to include the number of times in a financial year the Commissioner has exercised key powers; those which are not able to be delegated to other officers under the Bill. These powers include the use of investigation powers and to issue notices to require the removal of material. The intent of this amendment is to strengthen the accountability and transparency of the Commissioner.

 

Amendment 4 inserts a new subclause 183(2) that the report must include the number, during that financial year, of:

·          notices given by the Commissioner under clause 49 in relation to requiring a provider of a social media service, relevant electronic service or designated internet service to provide a periodic report about compliance with the basic online safety expectations;

·          notices given by the Commissioner under clause 56 in relation to requiring a provider of a social media service, relevant electronic service or designated internet service to provide a non-periodic report about compliance with the basic online safety expectations;

·          notices given by the Commissioner under clause 65 in relation to requiring a provider of a social media service, relevant electronic service or designated internet service to remove cyber-bullying material targeted at an Australian child;

·          notices given by the Commissioner under clause 66 in relation to requiring a hosting service provider to remove cyber-bullying material targeted at an Australian child;

·          notices given by the Commissioner under clause 70 in relation to requiring an end-user to remove cyber-bullying material targeted at an Australian child;

·          notices given by the Commissioner under clause 77 in relation to requiring a provider of a social media service, relevant electronic service or designated internet service to remove intimate images shared without consent;

·          notices given by the Commissioner under clause 78 in relation to requiring an end-user to remove intimate images shared without consent;

·          notices given by the Commissioner under clause 79 in relation to requiring a provider of a hosting service to remove intimate images shared without consent;

·          remedial directions given by the Commissioner under clause 83 requiring a person to take specified action directed towards ensuring the person does not contravene a prohibition in clause 75 of posting an intimate image without consent in the future;

·          notices given by the Commissioner under clause 88 in relation to requiring a provider of a social media service, relevant electronic service or designated internet service to remove cyber-abuse material targeted at an Australian adult;

·          notices given by the Commissioner under clause 89 in relation to requiring an end-user to remove cyber-abuse material targeted at an Australian adult;

·          notices given by the Commissioner under clause 90 in relation to requiring a provider of a hosting service to remove cyber-abuse material targeted at an Australian adult;

·          notices given by the Commissioner under clause 99 in relation to requiring internet service providers to block material depicting, promoting, inciting or instructing in abhorrent violent conduct;

·          notices given by the Commissioner under clause 109 in relation to requiring a provider of a social media service, relevant electronic service or designated internet service to remove class 1 material;

·          notices given by the Commissioner under clause 110 in relation to requiring a provider of a hosting service to remove class 1 material;

·          notices given by the Commissioner under clause 114 in relation to requiring a provider of a social media service, relevant electronic service or designated internet service to remove class 2 material that has been or would be classified X18+ provided from Australia;

·          notices given by the Commissioner under clause 115 in relation to requiring a provider of a hosting service to remove class 2 content that has been or would be classified X18+ provided from Australia;

·          remedial notices given by the Commissioner under clause 119 in relation to requiring a provider of a social media service, relevant electronic service or designated internet service to ensure material that has been or would be classified R18+ provided from Australia is removed or behind a restricted access system;

·          remedial notices given by the Commissioner under clause 120 in relation to requiring a provider of a hosting service to ensure material that would be classified R18+ provided from Australia is removed or behind a restricted access system;

·          notices given by the Commissioner under clause 124 to a provider of an internet search engine service to delete a link;

·          notices given by the Commissioner under clause 128 to a provider of an app distribution service to cease enabling end-users in Australia to download an app using that service;

·          notices given by the Commissioner under clause 143 to a participant in a section of the online industry required to comply with an industry code under the online content scheme;

·          remedial directions given by the Commissioner under clause 154 to a participant in a section of the online industry for a breach of service provider rules;

·          the number of applications made by the Commissioner to the Federal Court under clauses 156, 157, 158 and 159 seeking an order for a person to cease providing a social media service, relevant electronic service, designated internet service or internet carriage service;

·           the number of notices given by the Commissioner under clause 194 requiring a provider of a social media service, designated internet service or relevant electronic service to provide end-user identity information or contact details;

·          the number of notices given by the Commissioner under clause 199 in relation to requiring a person to appear before the Commissioner or provider documents on information in relation to an investigation;

·          the number of notices given by the Commissioner under clause 203 in relation to the production of documents for inspection by the Commissioner; and

·          The number of decisions that were reviewed by the Commissioner under the internal review scheme at clause 220A.

 

Amendment items 5 to 10 Review of decisions

 

Item 5 and item 6 are minor technical amendments to address oversights in drafting.

 

Items 7, 8 and 9 amend subclauses 220(2), 220(4) and 220(5), respectively, to omit references to powers to review decisions of the Commissioner to issue removal notices to end-users under clauses 78 and 89 in relation to non-consensual sharing of intimate images (clause 78) and adult cyber-abuse (clause 89).

 

Item 10 inserts a new subclause 220(10A) to provide that an application may be made to the Administrative Appeals Tribunal to review decisions to issue removal notices to end-users under clauses 78 and 89 in relation to non-consensual sharing of intimate images (clause 78) or adult cyber-abuse (clause 89).

 

Amendment item 11 ­Internal review of decisions

 

Item 11 inserts a new clause 220A in the Bill which provides that the Commissioner must, by notifiable instrument, formulate a scheme (the internal review scheme) for and in relation to the review by the Commissioner of decisions of a kind referred to in clause 220 (i.e. Administrative Appeals Tribunal reviewable decisions).

 

Decisions made under the Online Safety Bill may impact on persons, including providers of a social media service, relevant electronic service, designated internet service and end-users of those services, as well as providers of a hosting service, internet carriage service or bodies or associations representing sections of the online industry. It is the expectation of the Parliament that there be due process and natural justice in how decisions are made by the Commissioner unless the Act states the contrary intention.

 

Internal and external reviews of decisions are tools to demonstrate that decisions are made in accordance with due process and natural justice. The Bill provides for the establishment of an internal review scheme for those individuals or organisations impacted by decisions of the Commissioner under the Bill. The AAT also serves an important function in conducting independent merit reviews of administrative decisions made under Commonwealth laws.

 

 



 

Note on Clause 220A ­ Internal review of decisions

 

Clause 220A provides that the Commissioner must, by notifiable instrument, formulate a scheme (the internal review scheme) for and in relation to the review by the Commissioner of decisions of a kind referred to in section 220 (AAT reviewable decisions). The internal review scheme empowers the Commissioner to, on application, review such decisions and affirm, vary or revoke the decision concerned. The Commissioner may vary the internal review scheme. The scheme must be published on the Commissioner’s website.

 

AMENDMENTS TO ONLINE SAFETY BILL EXPLANATORY MEMORANDUM

 

Amendment to Note on Clause 2 - Commencement

 

At the end of the Note on Clause 2 add the following text:

 

It is the intention of the Government that the Online Safety Act commence six months after the Act receives the Royal Assent.

 

Amendment to Note on Clause 18

 

At the end of the Note on Clause 18 add the following text:

 

It is the intention that this would include material provided on an on-demand service in the ordinary course of the service conducting business.

 

Amendment to Note on Clause 137 - Statement of Regulatory Policy

 

At the end of the note on subclause 137(2) add the following text:

 

This requirement is for best endeavours and the Commissioner has the discretion to work with industry over whatever timeframe is deemed necessary to achieve an effective outcome.

 

This amendment addresses recommendation 1 of the Senate Environment and Communications Legislation Committee in its report of its Inquiry into the Online Safety Bill 2021 and the Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021 of 12 March 2021.