2022-2023

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

Online Safety Amendment (Breaking Online Notoriety) Bill 2023

 

 

 

EXPLANATORY MEMORANDUM

and

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

 

 

 

 

 

 

Circulated by authority of

Garth Hamilton MP

Online Safety Amendment (Breaking Online Notoriety) Bill 2023

 

OUTLINE

 

The Online Safety Amendment (Breaking Online Notoriety) Bill 2023 (the Bill) amends the Online Safety Act 2021 (the Act) to empower the e-Safety Commissioner to explicitly handle online content of criminal activity material in a similar way to how cyber-bullying and cyber-abuse material is treated.

 

The Bill defines criminal activity material as material that is hosted on a social media service, a relevant electronic service, or a designated internet service, and depicts conduct that is, or could be deemed to be, a criminal offence.

 

The purpose of the Online Safety Amendment (Breaking Online Notoriety) Bill 2023 is to extend the powers of the eSafety Commissioner to include criminal activity material.

 

The Bill seeks to empower the Commissioner, once a person has made a complaint, to manage instances where criminal activity material is posted on an online service for the purpose of gaining notoriety. The Bill does so by extending the functions of the eSafety Commissioner to include administering a complaints system for criminal activity material.

 

The Bill gives the eSafety Commissioner the power to investigate any complaint made regarding criminal activity material. If satisfied that the material is or was criminal activity material, the eSafety Commissioner may issue a removal notice to the provider of a social media service, a relevant electronic service or a designated internet service, or to a person who posts criminal activity material, or to a hosting service provider who hosts criminal activity material.

 

FINANCIAL IMPACT

 

The Bill will have no financial impact.

 

NOTES ON CLAUSES

 

Clause 1 Short title

 

Clause 1 is a formal provision specifying that the short title of the Act may be cited as the Online Safety Amendment (Breaking Online Notoriety) Act 2023 .

 

Clause 2 Commencement

 

Clause 2 provides for the commencement of the Bill.

 

Clause 3 Schedules

 

Schedule 1 - Amendments

 

Item 1 - Section 4

 

This item extends the functions of the eSafety Commissioner to include administering a complaints system for criminal activity material.

 

Item 2 - Section 4

 

This item amends the simplified outline of the Act to include detail regarding the complaints system for criminal activity material, including that a removal notice may be given to the provider of a social media service, a relevant electronic service or a designated internet service, or to a person who posts such material, or to a hosting service provider who hosts such material.

 

Item 3 - Section 5

 

This item inserts a definition of criminal activity material that refers to the meaning given by Section 9A.

 

Item 4 - Section 5

 

This item extends the definition of removal notice to include a notice given under sections 104B, 104C or 104D which are new sections to be added as Part 8A (Criminal activity material), specifically in relation to removal notices for criminal activity material.

 

Item 5 - After Section 9

 

This item inserts a new section on criminal activity material.

 

Criminal activity material, for the purposes of the Online Safety Act 2021, is material provided on a social media service, or a relevant electronic service, or a designated internet service, and constitutes, or may constitute, a criminal offence, and was posted on the service for the purpose of gaining notoriety.

 

Item 6 - Section 25

 

This item extends the functions of the eSafety Commissioner to include administering a complaints system for criminal activity material.

 

Item 7 - Section 29

 

This item extends the introduction to Part 3 (Complaints, objections and investigations) to include sections on a complaints system for criminal activity material.

 

Item 8 - After Division 4 of Part 3

 

This item inserts Division 4A (Complaints about criminal activity material) in Part 3.

 

This division includes a section on complaints about criminal activity material and the conditions under which a complaint may be made to the eSafety Commissioner. This division also includes a section on investigation of complaints.

 

Item 9 - At the end of paragraph 46(1)(c)

 

This item adds criminal activity material as a material type for which the provider of the service is to take reasonable steps to minimise the extent to which the material is provided on the service. This item relates to the making of determinations under section 45 in relation to basic online safety expectations.

 

Item 10 - At the end of paragraph 46(1)(e)

 

This item includes criminal activity material as one of the material types for which there is an expectation that the provider of the service will ensure that the service has clear and readily identifiable mechanisms that enable end - users to report, and make complaints about that type of material.

 

Item 11 - After Part 8

 

This item inserts a new Part 8A (Criminal activity material) dedicated to the requirements in relation to criminal activity material, including when a removal notice may be given and the requirement for a person to comply.

 

Item 12 - After paragraph 163(1)(i)

 

This item adds section 104E (Criminal activity material) as being subject to an infringement notice under Part 5 (Infringement notices) of the Regulatory Powers (Standard Provisions) Act 2014.

 

Item 13 - After paragraph 164(1)(j)

 

This item adds section 104E (Criminal activity material) as being enforceable under Part 6 (Enforceable undertakings) of the Regulatory Powers (Standard Provisions) Act 2014.

 

Item 14 - Before paragraph 165(1)(l)

 

This item adds section 104E (Criminal activity material) in relation to using injunctions to enforce provisions under Part 7 (Injunctions) of the Regulatory Powers (Standard Provisions) Act 2014.

 

Item 15 - After paragraph 182(4)(m)

 

This item adds sections 104B, 104C and 104D to the list of sections whereby subsection (1) of paragraph 182 does not apply in relation to delegating any or all of the Commissioner’s functions or powers.

 

Item 16 - After paragraph 183(2)(m)

 

This item inserts the requirement for an Annual Report prepared by the Commissioner to include information about the number of notices given by the Commissioner under sections 104B, 104C and 104D during that year.

 

Item 17 - After paragraph 183(2)(zj)

 

This item inserts the requirement for an Annual Report prepared by the Commissioner to include information about the number of informal notices given, and informal requests made, by the Commissioner to a person in relation to criminal activity material during that year.

 

Item 18 - Section 198

 

This item inserts a reference to 37B (Investigation of complaints), in regard to criminal activity material, as a new section to which Part 14 (Investigative powers) will apply.

 

Item 19 - Subsection 220(2) (heading)

 

This item updates the heading to subsection 220(2), which contains information relating to removal notices being given under section 104B, so that criminal activity material is included as one of the types of material for which an application may be made to the Administrative Appeals Tribunal for a review of a decision of the Commissioner.

 

Item 20 - Subsections 220(2) and (4)

 

This item adds section 104B (Removal notice given to the provider of a social media service, relevant electronic service or designated internet service) as one of the sections for which an application may be made to the Administrative Appeals Tribunal for a review of a decision of the Commissioner.

 

Item 21 - Paragraph 220(5)(a)

 

This item adds section 37A (Complaints about criminal activity material) to the sections for which an application may be made under Part 16.

 

Item 22 - Subsections 220(6) and (8)

 

This item adds section 104D (Removal notice given to a hosting service provider) to the sections for which an application may be made under Part 16.

 

Item 23 - Paragraph 220(9)(a)

 

This item adds section 37A (Complaints about criminal activity material) to the sections under which a person may make a complaint where an application is being made to the Administrative Appeals Tribunal.

 

Item 24 - Subsection 220(10A)

 

This item adds section 104C to the sections for which an application may be made to the Administrative Appeals Tribunal for a review of a decision of the Commissioner.

 

Item 25 - After paragraph 221(1)(h)

 

This item includes protection from civil proceedings for a person who makes a complaint under section 37A (Complaints about criminal activity material) or makes a statement or gives a document or information to the Commissioner in connection with an investigation under section 37B (Investigation of complaints).

 

Item 26 - Paragraph 226(1)(a)

 

This item includes section 37B (Investigation of complaints) as a section under which an investigation permits the Commissioner to make one or more copies of material.

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

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

 

Online Safety Amendment (Breaking Online Notoriety) Bill 2023

 

The Online Safety Amendment (Breaking Online Notoriety) Bill 2023 is 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 bill

 

The purpose of the Online Safety Amendment (Breaking Online Notoriety) Bill 2023 is to ensure that criminal activity material is treated in a similar way to how cyber-bullying and cyber-abuse material is treated in the Online Safety Act 2021.

 

Human rights implications

 

The principal human rights that the Bill engages are:

·          the right to protection from exploitation, violence and abuse primarily contained in Article 20(2) of the International Covenant on Civil and Political Rights (ICCPR), including any incitement to violence.

 

The purpose of this Bill is to deter people from providing material on a social media service (online sharing) that may depict conduct that is, or could be deemed to be, a criminal offence, and to provide the eSafety Commissioner with an appropriate enforcement mechanism to address the sharing of such content.

 

The Online Safety Amendment (Breaking Online Notoriety) Bill 2023 also addresses instances where material is posted online for the purpose of gaining notoriety so that people cannot gain ‘social credit’ from sharing criminal activity material, for the purposes of notoriety and demeaning victims of crime.

 

The Bill provides mechanisms for a person to make a complaint, and for enforcement action to be initiated, so that harmful content is removed, therefore promoting the right to protection from exploitation, violence and abuse.

 

Conclusion

 

This Bill is consistent with the right to protection from exploitation, violence and abuse as the measures contained in the Bill are directed towards the protection of persons from exploitation, violence and abuse.

 

 

 

 

Garth Hamilton MP