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1999
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
BROADCASTING
SERVICES AMENDMENT
(ONLINE SERVICES) BILL
1999
REVISED EXPLANATORY
MEMORANDUM
(Circulated by authority of
the Minister for
Communications, Information Technology and the Arts,
Senator the Honourable Richard Alston)
THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY
THE SENATE TO THE BILL
AS INTRODUCED
ISBN: 0642 404224
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 and
commercially 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 ordinary 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 total ongoing cost to the Commonwealth of the framework is estimated
at $1.9 million per annum. The costs include staffing and administrative
expenses of the ABA relating to its new responsibilities, ABA payments to the
Classification Board (on a cost-recovery basis), and the costs of establishing
the community advisory body.
Commonwealth funding will be required to
establish the community advisory body and to assist with ongoing administrative
costs, at least in the short to medium term. Establishment costs for that body
are estimated to be $0.2 million, with ongoing annual funding of $0.5 million
required.
The proposed complaints process will place the cost burden for
the investigation of complaints on the Commonwealth, not the online service
providers. An indicative estimate for the ABA to investigate complaints
including obtaining classifications from the Classification Board is $1.2
million. This figure includes ABA staffing and administrative expenses to
resource the complaints function. Funding will be kept under review in Budget
processes if the level of complaint and subsequent referral to the
Classification Board is higher than anticipated.
In addition to the
investigation of complaints, the ABA has a range of other legislated
responsibilities under the framework that need to be appropriately
resourced.
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 ‘take-down’ 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 submissions on the 1997 proposals.
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 and commercially 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.
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
BSA, 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 complaints about
certain 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:
• 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;
and
• the supply of Internet carriage services at performance
standards that reasonably meet the social, industrial and commercial needs of
the Australian community (proposed subsection 4(3) of the BSA).
An aim of
new subsection 4(3) is to make it clear that the Government does not intend the
regulation of Internet content to result in a degradation of network performance
to a point where the Internet no longer meets the needs of the Australian
community.
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 3 of proposed Schedule 5.
Like the Telecommunications Act 1997 (see, for example,
subparagraph 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 30 and 36 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 51 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 and subsection 33(3) of the Acts Interpretation Act
1901).
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 – Explanation of the context of this
Schedule
Clause 1 of proposed Schedule 5 to the BSA is intended to
allay the concern that the Bill, taken in isolation, creates the impression that
Internet service providers and Internet content hosts are to bear the prime
burden in relation to offensive material rather than those who create and upload
such material.
Clause 1 inserts a new explanatory statement at the
beginning of proposed Schedule 5 to the BSA. This statement puts the Bill in
the context of a national scheme already agreed to by the Commonwealth, State
and Territory Attorneys-General.
The first component of the proposed
scheme is proposed Schedule 5 to the BSA contained in the Bill. Under this
component, the Commonwealth will be responsible for regulating Internet content
service providers and Internet content hosts. This component does not impose
any obligations on producers of content on the Internet or persons who upload or
access such content.
The second component of the proposed scheme is
proposed uniform State and Territory laws that will create offences for the
publication and transmission of proscribed material by producers of content on
the Internet or persons who upload or access such content. It is intended under
the national scheme that the States and Territories will be primarily
responsible for regulating the activities of persons who create, upload or
access content.
The second component of the proposed scheme will also
include section 85ZE of the Crimes Act 1914 (Cth) as proposed to be
amended by the Bill. Section 85ZE, as proposed to be amended, will prohibit a
person from knowingly or recklessly:
(a) using a carriage service
supplied by a carrier to menace or harass another person; or
(b) using a
carriage service supplied by a carrier (except where that use is to carry
Internet content) in such as way as would be regarded by reasonable persons as
being, in all the circumstances, offensive.
The third component of the
proposed scheme will be a range of non-legislative initiatives directed towards
monitoring content on the Internet and educating and advising the public about
content on the Internet.
One such initiative is reflected in clause 58
of proposed Schedule 5 to the BSA which provides for the establishment of a
designated body. It is intended that the designated body will be a community
based organisation established to monitor material, operate a
‘hotline’ to receive complaints about illegal material and pass this
information to the ABA and police authorities, and advise the public about
options such as filtering software that are available to address concerns about
online content.
Another such initiative is reflected in clause 94 of
proposed Schedule 5 to the BSA which sets out the ABA’s functions for the
purposes of proposed Schedule 5 to the BSA. These functions are additional
functions of the ABA for the purposes of section 159 of the BSA. The
ABA’s additional functions under clause 94 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 2 – Simplified outline
Clause 2 of
proposed Schedule 5 to the BSA sets out a simplified outline of the Schedule to
assist readers.
Clause 3 – Definitions
Clause 3 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 92 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 3 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 a content provider
to provide 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 29 and 88 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
12(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 12 and 13 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 51 which
refers to a scheme in the nature of a scheme for substituted service) is in
paragraph 40(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 5, 12 and 13 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 13 of proposed Schedule 5 to 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, subparagraph 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:
• ordinary electronic mail; or
• information
that is transmitted in the form of a broadcasting service.
The exclusion of ‘ordinary electronic mail’ from the definition of Internet content is intended to make it clear that the exclusion only applies to what an ordinary user of the Internet would regard as being e-mail, and that the exclusion does not apply to other forms of postings of material, such as postings to newsgroups. The term is also intended to minimise the scope for technical arguments about the ‘outer boundaries’ of the term ‘e-mail’ within the Internet community. The definition of ‘ordinary electronic mail’ makes it clear that the term will not include a posting to a newsgroup. These provisions are intended to ensure that personal e-mail is not caught by the definition of ‘Internet content’.
Examples of Internet content include pages on the World Wide Web,
archived mailing list messages, 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 80 of proposed Schedule
5 to the BSA).
The definition of ‘Internet content’ also
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 8) 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 9. 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:
• end-users in Australia can access prohibited content or
potential prohibited content using an Internet carriage service;
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 3 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 9(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 4
– Restricted access system
An example of the use of the term
‘restricted access system’ is clause 10 of proposed Schedule 5 to
the BSA.
Under subclause 4(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 4(1)
will have effect accordingly.
In making an instrument under subclause
4(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 4(2)).
Such an instrument will be a
disallowable instrument (subclause 4(3)). Accordingly, the instrument will be
required to be notified in the Commonwealth Gazette, tabled in the
Parliament and will be subject to Parliamentary disallowance.
Clause 5
– Internet content that consists of a film
Clause 5 is an
interpretative provision of relevance to provisions such as clauses 12 and 13 of
proposed Schedule 5 to the BSA.
Clause 5 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 6 provides that the provisions of proposed Schedule 5 to the BSA
will continue to apply to any classification category that may replace the
classification X.
Commonwealth, State and Territory Governments are
currently considering a new classification category to replace and tighten the
current classification X. The exact description of this classification has not
been finally decided although options include non-violent erotica (NVE) and
non-violent pornography (NVP).
Clause 7 – Extended meaning of
use
Clause 7 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 9 of proposed Schedule 5 to the
BSA.
Part 2––Internet service providers
Clause 8 – Internet service providers
Clause 8
defines an Internet service provider. There are 2 elements to the definition.
Subclause 8(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 3) to the public. The concept of supply to the public is
dealt with in clause 9.
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 8(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 8(2).
Subclause 8(3) provides that a Ministerial declaration
under subclause 8(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 9 – Supply to
the public
Clause 9 sets out the circumstances in which an Internet
carriage service will be deemed to be supplied to the public for the purposes of
subclause 8(1) (subclause 9(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 3) 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 3) 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
9(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
9(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
9(6)).
For the purposes of subclause 9(5), ‘content service’
will have the same meaning as in the Telecommunications Act 1997
(subclause 9(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 3 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 10 – Prohibited content
Clause 10 is an
interpretative provision which sets out when Internet content hosted in or
outside Australia will be prohibited content. An example of the use of the
concept of prohibited content is subclause 30(1) of proposed Schedule 5 to the
BSA.
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 4).
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 11 – 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 10 (subclause 11(1)).
An example of the use
of the concept of potential prohibited content is subclause 30(2) 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 11(2)).
Clause 12 – Classification
of Internet content that consists of a film or a computer game
Clause
12 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 3 and 5) 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 12(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 12(2)).
Clause 12 needs to be read in
conjunction with clause 5. Clause 5 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 13 – Classification of Internet
content that does not consist of a film or a computer game
Clause 13
provides that if Internet content does not consist of the entire unmodified
contents of a film or a computer game (see clauses 3 and 5), 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 14
– 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 12(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 14(1) to
(3)).
If the Classification Board reclassifies Internet content, it must
notify the ABA accordingly (subclause 14(4)).
Clause 15 – 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 12(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 15(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 15(3)).
Division 3––Review of classification
decisions
Subdivision A––Review of classification of
Internet content
Clause 16 – Persons who may apply for review
Clause 16
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 12(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 17 – Applications for
review
Subclause 17(1) sets out the form in which an application for
review of a classification must be made.
Subclause 17(2) empowers the
Minister or the ABA to apply for review of a classification at any
time.
Subclause 17(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 17(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 17(4)
and (6)).
Any such fees will be limited to cost recovery and will not be
able to amount to taxation (subclause 17(5)).
Clause 18 –
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 18(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 18(2)).
Subdivision B––Review of Internet content that
consists of a
film or a computer game
Clause 19 – 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 3 and 5); 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 20 – 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
20(1)).
References in clause 20 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 16)
(subclause 20(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 20(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
20(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 20(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 20(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 20(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 20(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 20(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 20(5) and
(7)).
Clause 21 – 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 21(1)).
To avoid doubt, subclause 21(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 22 – Complaints about prohibited content or potential
prohibited content
If a person has reason to believe
that:
• end-users in Australia can access prohibited content or
potential prohibited content using an Internet carriage service;
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 22(1) and
(2)).
The person will not be able to make a complaint about something
that occurs before 1 January 2000 (subclause 22(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 22(3) sets out the details that
must be included in a complaint. As a result of clause 29, 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 22(4) provides that the requirement in paragraph
22(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 23
– Complaints about breaches of industry codes, industry standards and
online provider rules
Clause 23 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 79),
including the requirement in clause 72 to comply with a relevant industry
standard, a person will be able to make a complaint to the ABA about the
matter.
Clause 24 – Form of complaint
Clause 24
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 25 –
Residency etc. of complainant
Clause 25 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 26 – 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 26(1) and (2)).
The ABA will be required to notify the
complainant of the results of such an investigation (subclause
26(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 26(4)).
Clause 27 – ABA may
investigate matters on its initiative
Clause 27 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 27 will be used
by the ABA to monitor content actively. Clause 27 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 94(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 27 will also improve the ABA’s ability
to deal with avoidance situations.
Clause 28 – Conduct of
investigations
Clause 28 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 28 will apply in addition to Part 13 of the BSA which deals
with information gathering by the ABA, including investigation powers and
procedures.
Clause 29 – Protection from civil
proceedings
Clause 29 provides an immunity from civil proceedings
(see clause 3) (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 30 – 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 30(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 92(1)(b) and subclause
92(2)).
Subclause 30(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
30(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 92(1)(a) and subclause
92(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 30(2)(b)).
If the ABA makes a decision under paragraph 30(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 30(6)).
The ABA’s decision under
paragraph 30(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 92(1)(d) and subclause
92(2)).
If the Classification Board receives a request under paragraph
30(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 30(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
30(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 30(5)).
Clause 31 –
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 31(1), the
ABA would be required to take action under subclause 30(1) or (2) in relation to
a complaint about the content; and
• a member of an Australian
police force (as defined in clause 3) 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
31(1)).
Subclause 31(1) will have effect despite anything in clause 30
(subclause 31(2)).
Clause 32 – 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 4);
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 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 to this effect
(subclause 32(2)).
Clause 33 – Revocation of interim take-down
notices––voluntary withdrawal of Internet content
Clause
33 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 33(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 33, the ABA will be required to
notify the Internet content host concerned to this effect (subclause
33(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 33 (see
subclause 37(4)). This requirement will be an online provider rule (see clause
79). Contravention of online provider rules is an offence (clause 82) and a
continuing offence (clause 86).
Clause 34 – 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
12(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 34(1)).
If a final take-down notice is revoked under clause
34, 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 34(2)).
Clause 35 – 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 3 and 5);
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 35(1)).
If a final take-down notice is revoked under
clause 35, the ABA will be required to give the Internet content host concerned
a written notice to this effect (subclause 35(2)).
As an anti-avoidance measure, clause 36 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 the same as, or 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 reference to Internet content
being the same as Internet content identified in the interim or final take-down
notice is intended to address the situation where Internet content is moved to
another site without modification.
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 92(1)(c) and subclause 92(2)).
Clause 37 –
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 30 and 36) as soon as practicable, and in any event by 6pm on the next
business day, after the notice was given to the host (subclauses 37(1) to
(3)).
The term ‘business day’ is defined in clause 3 of
proposed Schedule 5 to the BSA to mean a day that is not a Saturday, a Sunday or
a public holiday in the place concerned.
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 33 (subclause 37(4)).
The rules set out
in clause 37 are online provider rules (see clause 79). 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 33 will be subject
to an offence under clause 82 and to a continuing offence under clause
86.
Clause 38 – Identification of Internet
content
Clause 38 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.
For the purposes of greater clarity concerning the operation of clause
38, clause 39 puts beyond doubt that notices under Division 3 should identify a
particular Internet site, a class of Internet site or a distinct part of such a
site.
Division 4––Action to be taken in relation to a complaint about prohibited content hosted outside Australia
Clause 40 – 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 49):
– to a member of the Australian
police force (see clause 3); 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 60(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 3) set out in the
code or standard; and
• if there is no code or standard dealing
with the matters referred to in subclause 60(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 40(1)).
Clause 51
deals with the circumstances where the ABA may be deemed to have given a
standard access-prevention notice for the purposes of paragraph
40(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 92(1)(e) and subclause 92(2)).
In
determining whether particular steps are reasonable for the purposes of
paragraph 40(1)(c), regard will be required to be had to the technical and
commercial feasibility of taking the steps and 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 40(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.
Many users,
including schools and major businesses, will already have their own blocking
technologies in place such as firewalls and filtering software. It would be
inefficient to be ‘double filtering’ such material by also requiring
Internet service providers to filter all requests coming from such users. The
processing overheads from filtering requirements would be reduced significantly
if such users could be exempted from the filtering
requirements.
Subclauses 40(4) to (7) address this
issue.
Subclause 40(4) provides that an Internet service provider will
not be required to comply with a standard-access prevention notice under
paragraph 40(1)(c) in relation to a particular end-user of Internet content if
access by the end-user is subject to a recognised alternative access-prevention
arrangement that is applicable to the end-user.
Subclause 40(5) defines
the term ‘recognised alternative access-prevention arrangement’.
The ABA will be able, by written instrument, to declare that a specified
arrangement or a specified class of arrangement is a recognised alternative
access-prevention arrangement for the purposes of the application of Division 4
of Part 4 of proposed Schedule 5 to the BSA (which deals with action to be taken
in relation to a complaint about prohibited content hosted outside Australia) to
one or more specified end-users. The ABA will be able to do so if it is
satisfied that the arrangement is likely to provide a reasonably effective means
of preventing access by those end-users to prohibited content (as defined by
clause 10) and potential prohibited content (as defined by clause
11).
Subclause 40(6) provides examples of arrangements that could be
declared to be recognised alternative access-prevention arrangements under
subclause 40(5). These include an arrangement that involves the use of
regularly updated Internet content filtering software and an arrangement that
involves the use of a ‘family-friendly’ filtered Internet carriage
service. These examples are not intended to be exhaustive.
Subclause
40(7) provides that the ABA’s instrument declaring that a specified
arrangement or specified class of arrangement is a recognised alternative
access-prevention arrangement under subclause 40(5) will be a disallowable
instrument. The instrument must accordingly be notified in the Commonwealth
Gazette, tabled in the Parliament and will be subject to Parliamentary
disallowance.
The manner in which Internet content will be able to be
notified to the police under paragraph 40(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 40(8)).
If a member of the Australian Federal Police
or of a State or Territory police force is notified of particular Internet
content under clause 40, that person may notify the content to a member of
another law enforcement agency in Australia or overseas (subclause
40(9)).
Clause 40 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 40(10)).
Clause 41 –
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 41(1),
the ABA would be required to take action under subclause 40(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 41(1)).
Subclause 41(1) will have effect
despite anything in clause 40 (subclause 41(2)).
Clause 42 –
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
12(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 42(1)).
If a notification of Internet content is withdrawn
under subclause 42(1) and an industry code or industry standard deals with the
matters referred to in subclause 60(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 3) set
out in the code or standard (subclause 42(2)).
Clause 43 –
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 film or a computer game (see clauses 3 and 5); 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
43(1)).
If a notification of Internet content is withdrawn under
subclause 43(1) and an industry code or industry standard deals with the matters
referred to in subclause 60(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 3) set
out in the code or standard (subclause 43(2)).
Clause 44 –
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 40(1)(c)) if:
• Internet
content has been classified by the Classification Board under proposed Schedule
5 to the BSA (otherwise than because of subclause 12(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
44(1)).
If a standard access-prevention notice is revoked under clause
44, 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 44(2)). Clause 51 deals with the circumstances in which the
ABA may be deemed to have given a notice under subclause 44(2).
Clause
45 – 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 40(1)(c)) if:
• Internet content consists of the
entire unmodified contents of a film or a computer game (see clauses 3 and 5);
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 45(1)).
If a standard
access-prevention notice is revoked under clause 45, the ABA will be required to
give the Internet service provider concerned a written notice to this effect
(subclause 45(2)). Clause 51 deals with the circumstances in which the ABA may
be deemed to have given a notice under subclause 45(2).
Clause 46
– Anti-avoidance––notified Internet content
As an
anti-avoidance mechanism, clause 46 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 Internet content that is the same
as, or substantially similar to, prohibited content or potential prohibited
content is being hosted outside Australia; and
• the ABA is
satisfied that the identical or 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 60(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 3) set out in the code or standard (subclause 46(1)).
The
reference to Internet content being the same as prohibited content or potential
prohibited content is intended to address the situation where Internet content
is moved to another site without modification.
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 46(1) to that content, the ABA notifies similar
Internet content to Internet service providers in accordance with subclause
46(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 46(2)).
If a notification of Internet
content is withdrawn under subclause 46(2) and an industry code or industry
standard deals with the matters referred to in subclause 60(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
46(3)).
Clause 47 – Anti-avoidance––special
access-prevention notice
If:
• a standard
access-prevention notice (see paragraph 40(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 the same as, or 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 47(1)).
Clause 51 sets out the circumstances in which the
ABA may be deemed to have given a notice under clause 47.
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 92(1)(f) and subclause 92(2)).
In
determining whether particular steps are reasonable for the purposes of
subclause 47(1), regard will be required to be had to the technical and
commercial feasibility of taking the steps and 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 47(2) and (3)).
Many users, including schools and major
businesses, will already have their own blocking technologies in place such as
firewalls and filtering software. It would be inefficient to be ‘double
filtering’ such material by also requiring Internet service providers to
filter all requests coming from such users. The processing overheads from
filtering requirements could be reduced significantly if such users could be
exempted from the filtering requirements.
Subclause 47(4) addresses this
issue. It provides that an Internet service provider will not be required to
comply with a special-access prevention notice under subclause 47(1) in relation
to a particular end-user of Internet content if access by the end-user is
subject to a recognised alternative access-prevention arrangement that is
applicable to the end-user.
Subclause 40(5) defines the term
‘recognised alternative access-prevention arrangement’. The ABA
will be able, by written instrument, to declare that a specified arrangement or
a specified class of arrangement is a recognised alternative access-prevention
arrangement for the purposes of the application of Division 4 of Part 4 of
proposed Schedule 5 to the BSA (which deals with action to be taken in relation
to a complaint about prohibited content hosted outside Australia) to one or more
specified end-users. The ABA will be able to do so if it is satisfied that the
arrangement is likely to provide a reasonably effective means of preventing
access by those end-users to prohibited content (as defined by clause 10) and
potential prohibited content (as defined by clause 11).
Subclause 40(6)
provides examples of arrangements that could be declared to be recognised
alternative access-prevention arrangements under subclause 40(5). These include
an arrangement that involves the use of regularly updated Internet content
filtering software and an arrangement that involves the use of a
‘family-friendly’ filtered Internet carriage service. These
examples are not intended to be exhaustive.
Clause 48 –
Compliance with access-prevention notices
An Internet service
provider will be required to comply with a standard access-prevention notice
(see paragraph 40(1)(c)) or a special access-prevention notice (see clause 47)
that applies to the provider as soon as practicable, and in any event by 6pm on
the next business day, after the notice was given to the provider (subclauses
48(1) and (2)).
The term ‘business day’ is defined in clause
3 of proposed Schedule 5 to the BSA to mean a day that is not a Saturday, a
Sunday or a public holiday in the place concerned.
These requirements are
online provider rules (see clause 79). 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 48 will be subject to an offence under clause 82 and to a continuing
offence under clause 86.
Clause 49 – Notification of Internet
content
Clause 49 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.
For the purposes of greater clarity concerning the operation of clause
49, clause 50 puts beyond doubt that notices under Division 4 should identify a
particular Internet site, a class of Internet site or a distinct part of such a
site.
Clause 51 – ABA may be taken to have issued
access-prevention notices
Subject to subclause 51(2), 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
40(1)(c) of proposed Schedule 5;
– in a case where such a notice is
revoked under clause 44 or 45 – given each Internet service provider a
notice of revocation under subclause 44(2) or 45(2);
– given each
Internet service provider a special access-prevention notice under clause 47
(subclauses 51(1) and (4)).
At a minimum, a scheme formulated under
subclause (1) must provide for each Internet service provider to be alerted by
electronic means (ie. by e-mail) to the existence of a notice (subclause
51(2)).
Paragraph 40(1)(c) of proposed Schedule 5 to the BSA will have
effect, in relation to a scheme under subclause 51(1), as if the reference in
paragraph 40(1)(c) to each Internet service provider known to the ABA were a
reference to each Internet service provider (subclause 51(3)).
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 52 – Simplified outline
Clause 52 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 53 – Industry codes
Clause 53 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 54 – Industry standards
Clause 54
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 55 – Internet activity
Clause 55 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 56
– Sections of the Internet industry
Clause 56 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 63) 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 57 – Participants in a section of the Internet
industry
Clause 57 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 58
– Designated body
Clause 58 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 62(1)(g)). The
ABA will also be required to consult any such designated body before
determining, varying or revoking an industry standard (see clause 77).
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 59 – Statement of regulatory policy
Clause 59 is a
statement of the Parliament’s regulatory policy and provides important
guidance to the ABA in performing its functions under Part 5.
Subclause
59(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 59(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 59(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 60(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 59(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
40(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 60 – Matters that must be dealt
with by industry codes and industry standards
Subclause 60(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 60(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 3);
• 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).
Many users,
including schools and major businesses, will already have their own blocking
technologies in place such as firewalls and filtering software. It would be
inefficient to be ‘double filtering’ such material by also requiring
Internet service providers and Internet content hosts to filter all requests
coming from such users. The processing overheads from filtering requirements
could be reduced significantly if such users could be exempted from the
filtering requirements.
Subclauses 60(3) to (8) address this
issue.
Subclause 60(3) provides that an industry code or an industry
standard will be able to exempt an Internet service provider from taking steps
to prevent end-users from accessing prohibited content hosted outside Australia,
or content that is substantially similar to such prohibited content, if access
is subject to an arrangement that is declared by the code or standard to be a
designated alternative access-prevention arrangement for the purposes of the
application of clause 60 to those end-users.
Subclause 60(4) provides
that the body or association developing an industry code will not be able to
able to declare that a specified arrangement, or a class of specified
arrangement, is a designated alternative access-prevention arrangement for the
purposes of the application of clause 60 to one or more specified end-users, or
classes of specified end-users, unless the body or association is satisfied that
the arrangement is likely to provide a reasonably effective means of preventing
access by those end-users to prohibited content (as defined by clause 10) and
potential prohibited content (as defined by clause 11).
Similarly,
subclause 60(5) provides that the ABA, in making an industry standard, will not
be able to able to declare that a specified arrangement, or a class of specified
arrangement, is a designated alternative access-prevention arrangement for the
purposes of the application of clause 60 to one or more specified end-users, or
classes of specified end-users, unless the ABA is satisfied that the arrangement
is likely to provide a reasonably effective means of preventing access by those
end-users to prohibited content and potential prohibited
content.
Subclause 60(6) provides examples of arrangements that could be
declared to be designated alternative access-prevention arrangements under
subclause 60(3). These include an arrangement that involves the use of
regularly updated Internet content filtering software and an arrangement that
involves the use of a ‘family-friendly’ filtered Internet carriage
service. These examples are not intended to be exhaustive.
Subclauses 60(7) and (8) provide that for the purposes of proposed Schedule 5
to the BSA, if an industry code or an industry standard:
• deals to
any extent with procedures to be followed by Internet service providers in
dealing with prohibited content hosted outside Australia, or content that is
substantially similar to such prohibited content; and
• makes
provision for a designated alternative access-prevention
arrangement;
then
• the code or standard is deemed to have
dealt with the requirements of paragraph 60(2)(d) (which requires codes and
standards to deal with procedures, including filtering procedures, to be
followed by Internet service providers in dealing with prohibited content hosted
outside Australia, or content that is substantially similar to such prohibited
content); and
• the code or standard is deemed to be consistent
with subclause 60(2).
Subclause 60(9) provides that clause 60 does not, by implication, limit the
matters that industry codes and industry standards may deal
with.
Clause 61 – Industry codes and industry standards not to
deal with certain matters
Clause 61 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 62 – Registration of industry codes
Clause 62
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 62(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 59 and the requirements of clause 60 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 62(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 62(3)) and considered any submissions; and
• any designated body (see clause 58) 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
62(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 92(3) and (4)).
Clause 63 – ABA may request
codes
Clause 63 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 68). That provision has the effect of preventing the ABA developing an
industry standard before the industry has an opportunity to develop a
code.
Clause 63 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 63 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 63(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 63(5)).
The ABA’s notice under subclause
63(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 68(1)(b)(ii)).
Clause
64 – Publication of notice where no body or association represents a
section of the Internet industry
Clause 64 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 63 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 69.
Again, the provision has the effect of preventing the ABA developing an industry
standard before industry has an opportunity to develop a code.
Clause
65 – Replacement of industry codes
Clause 65 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
62(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 66 – Compliance with industry
codes
Clause 66 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 79). Contravention of online
provider rules is an offence (clause 82) and a continuing offence (clause
86).
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 92(1)(g) and subclause
92(2)).
Clause 67 – Formal warnings––breach of
industry codes
Clause 67 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 83 to 85. 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 68 – ABA may determine an industry standard if a request
for an industry code is not complied with
Clause 68 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 63. It prevents the ABA from making a standard before an
industry section has had an appropriate opportunity to develop a
code.
Clause 68 provides that, if the ABA requests a code to be developed
by a particular section of the Internet industry under subclause 63(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 68(3) requires the
ABA to consult the body or association to which it made the request before
determining an industry standard.
Subclause 68(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 68(5) empowers the Minister to give
the ABA a written direction as to the exercise of its powers under clause
68.
Clause 69 – ABA may determine industry standard where no
industry body or association formed
Clause 69 enables the ABA to make
a standard where no industry representative body has been established. The
provision works in tandem with clause 64. 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 64(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 69(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 69(4) empowers the Minister to give the ABA a
written direction as to the exercise of its powers under clause
69.
Clause 70 – ABA may determine industry
standards––total failure of industry codes
Clause 70
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
70(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 70(6)).
Subclause 70(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 70(7)).
Subclause
70(8) empowers the Minister to give the ABA a written direction as to the
exercise of its powers under clause 70.
Clause 71 – ABA may
determine industry standards––partial failure of industry
codes
Clause 71 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
71(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 71(6)).
Subclause 71(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 71(7)).
Subclause 71(8) empowers the
Minister to give the ABA a written direction as to the exercise of its powers
under clause 71.
Clause 72 – Compliance with industry
standards
Clause 72 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 79). Contravention of online provider rules is
an offence (clause 82) and a continuing offence (clause 86).
Clause 73
– Formal warnings––breach of industry
standards
Clause 73 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 83 to 85.
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 74 – Variation of industry
standards
Clause 74 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 75 – Revocation
of industry standards
Clause 75 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 76
– Public consultation on industry standards
Clause 76 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
76(3)).
The ABA must have due regard to any comments made (subclause
76(4)).
Clause 77 – Consultation with designated
body
Clause 77 provides that before determining, varying or revoking
an industry standard, the ABA must consult any designated body (see clause
58).
Division 6––Register of industry codes and industry standards
Clause 78 – ABA to maintain Register of industry codes and
industry standards
Clause 78 provides for the establishment and
maintenance by the ABA of a Register of industry codes and standards, requests
under clause 63, notices under clause 64 and ABA directions under clause 66.
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 79 – Online provider rules
Clause 79 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 37(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 30 and 36) as soon as practicable, and in any event by 6pm
on the next business day, after the notice was given to the
host;
• the rule set out in subclause 37(4), which requires an
Internet content host to comply with an undertaking given to, and accepted by,
the ABA under clause 33;
• the rules set out in subclauses 48(1)
and (2), which require an Internet service provider to comply with any standard
access-prevention notice (see paragraph 40(1)(c)) or any special
access-prevention notice (see clause 47) that applies to the provider as soon as
practicable, and in any event by 6pm on the next business day, after the notice
was given to the provider;
• the rule set out in subclause 66(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 72, 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 80.
Under clauses
82 and 86, 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 80 – Online
provider determinations
Clause 80 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 (see subclause 80(8)) and accordingly
will be required to be notified in the Commonwealth Gazette, tabled in
the Parliament and will be subject to Parliamentary
disallowance.
Subsection 33(3) of the Acts Interpretation Act 1901
will allow online provider determinations to be varied or revoked by written
determination.
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.
Subclause 80(5) is along the lines of subsection 99(3) of the Telecommunications Act 1997. This provision will ensure that the ABA cannot make an online provider determination unless the determination relates to a matter specified in regulations made under the BSA.
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
(subclause 80(6)).
An online provider determination will be able to
empower the ABA to make decisions of an administrative character (subclause
80(7)).
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 92(1)(h) and subclause 92(2)).
Clause 81 –
Exemptions from online provider determinations
The Minister will be
empowered to determine that a specified Internet service provider is exempt from
all (subclause 81(1)) or specified (subclause 81(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 81 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 82 –
Compliance with online provider rules
Clause 82 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
86).
Clause 83 – Remedial directions––breach of
online provider rules
Clause 83 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 83(3) gives two
examples of the kinds of directions which the ABA may give under subclause
83(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 83(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 86).
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 92(1)(g) and subclause 92(2)).
Clause 84
– Formal warnings––breach of online provider
rules
Clause 84 will allow the ABA to issue a formal warning if a
person contravenes an online provider rule.
Clause 85 – 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
85(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 85(2)).
Part
7––Offences
Clause 86 – Continuing offences
Clause 86 provides that a
person who contravenes:
• clause 82, which provides that a person
subject to an online provider rule who contravenes the rule will be guilty of an
offence; and
• subclause 83(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 87 – 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 87(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 87(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
87(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 87(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 87(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
87(3) and (4) had not been in force, the person will not be liable to be
punished by imprisonment for that offence (subclause 87(5)).
For the
purposes of subclause 87(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
87(6)).
A reference in clause 87 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
87(7)).
A reference in clause 87 to ‘engaging in conduct’
will include a reference to refusing to engage in conduct (subclause
87(8)).
A reference in clause 87 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
87(9)).
Part 8––Protection from
civil and criminal proceedings
Clause 88 – 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 88(1)); or
• clause 48 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 by 6pm on the next business day, after the notice was given to
the provider (subclause 88(2)).
Internet content hosts will be protected
from civil proceedings in respect of anything done by them in compliance with
clause 37 (subclause 88(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 30 and 36) as
soon as practicable, and in any event by 6pm on the next business day, after the
notice was given to the host;
• any undertaking given to the ABA by
the host and accepted by the ABA under clause 33 (see subclause
37(4)).
Clause 89 – Protection from criminal
proceedings––ABA, Classification Board and Classification Review
Board
Clause 89 protects certain persons from criminal proceedings in
certain circumstances.
Subclause 89(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 89(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 89(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 90 – Concurrent operation of State and Territory
laws
Clause 90 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 91 – Liability
of Internet content hosts and Internet service providers under State and
Territory laws etc.
Clause 91, in conjunction with clause 90, 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 91(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 91(1) (subclause 91(2)). Such an exemption will
be able to be unconditional or subject to such conditions (if any) as are
specified in the exemption (subclause 91(3)). This is intended to ensure that
any unintended consequences of subclause 91(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 91(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 91(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
91(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 91(7) provides that a Ministerial exemption under subclause
91(2) and a Ministerial declaration under subclause 91(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 92 – Review by the AAT
Clause 92 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 30(2)) will be reviewable by the
AAT on the application of the Internet content host concerned (paragraph
92(1)(a) and subclause 92(2)).
The ABA’s decision to give an
Internet content host a final take-down notice (see subclauses 30(1) and (4))
will be reviewable by the AAT on the application of the Internet content host
concerned (paragraph 92(1)(b) and subclause 92(2)).
The ABA’s
decision to give an Internet content host a special take-down notice (see clause
36) will be reviewable by the AAT on the application of the Internet content
host concerned (paragraph 92(1)(c) and subclause 92(2)).
The ABA’s
decision under paragraph 30(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 92(1)(d) and subclause 92(2)).
The ABA’s
decision to issue standard access-prevention notice for the purposes of
paragraph 40(1)(c) will be reviewable by the AAT on the application of the
relevant Internet service provider concerned (paragraph 92(1)(e) and subclause
92(2)).
The ABA’s decision to give an Internet service provider a
special access-prevention notice (see clause 47) will be reviewable by the AAT
on the application of the relevant Internet service provider concerned
(paragraph 92(1)(f) and subclause 92(2)).
The ABA’s decision to
give, vary or refuse to revoke a direction to comply with an industry code
(clause 66) or a remedial direction (clause 83) 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 92(1)(g) and subclause 92(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 92(1)(h) and
subclause 92(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 92(3) and (4)).
Clause 93 – Notification of
decisions to include notification of reasons and appeal rights
Clause
93 is based on section 205 of the BSA. It provides that if the ABA makes a
decision that is reviewable under clause 92, 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 94 – Additional ABA functions
Clause 94 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
94 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 95 – Review before 1 January
2003
The Minister will be required to arrange for a review of the
operation of Schedule 5 to the BSA to be completed before 1 January 2003
(subclause 95(1)). Because technology is developing so rapidly, it is important
to have a clear assessment of what is technically available in terms of
filtering offensive Internet content.
The review will include an
assessment of the development of Internet content filtering technologies and
whether they have developed to a point where it would be feasible to filter
R-rated information hosted overseas that is not subject to a restricted access
system. Any other matters relevant to Internet content regulation will also be
able to be considered as part of the review (subclause 95(2)).
The
Minister will be required to arrange for a report of the review to be prepared
(subclause 95(3)) and for the report to be tabled before each House of
Parliament within 15 sitting days after the completion of the preparation of the
report (subclause 95(4)).
The Parliament acknowledges the
Government’s policy intention that, in the event that Internet content
filtering technologies develop to a point where it is practicable to use those
technologies to prevent end-users from accessing R-rated information hosted
overseas that is not subject to a restricted access system, legislation will be
introduced into the Parliament to extend subclause 10(1) (which deals with
prohibited Internet content hosted in Australia) and repeal subclause 10(2)
(which deals with prohibited Internet content hosted overseas) (subclause
95(5)).
Clause 96 – Schedule not to affect performance of State
or Territory functions
Clause 96 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).