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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)
ISBN: 0642 392986
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.
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) the 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).