Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2019-2020-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
ONLINE SAFETY BILL 2021
ADDENDUM TO THE EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Communications, Urban Infrastructure, Cities and the Arts,
The Hon Paul Fletcher MP)
ONLINE SAFETY BILL 2021
This addendum responds to concerns raised:
by the Senate Standing Committee for the Scrutiny of Bills in its Scrutiny Digest 6 of
2021, dated 21 April 2021,
by the Parliamentary Joint Committee on Human Rights Report 5 of 2021, dated
29 April 2021, and
in evidence cited by the Senate Environment and Communications Legislation
Committee in its Report of its Inquiry into the Online Safety Bill 2021 and the Online
Safety (Transitional Provisions and Consequential Amendments) Bill 2021, dated
12 March 2021.
OUTLINE OF THE BILL
Page 3 after:
A person must comply with a reporting notice from the Commissioner to the extent that the
person is capable of doing so. If the social media service, relevant electronic service, or
designated internet service fails to do so they will be subject to a civil penalty.
Add the following text:
Commissioner's powers to order removal of material
Parts 5, 6, 7 and 9 of the Bill establish powers for the Commissioner to require the removal of
material from a social media service, relevant electronic service, designated internet service
or hosting service where certain preconditions are met.
It is intended that if the Commissioner requires a provider of a service to remove material by
notice, the Commissioner take into account both the ability of the provider to comply with the
notice and the likely impact on other users of the service.
NOTES ON CLAUSES
1. Clause 183 - Annual report
After the paragraph commencing 'Clause 183 - Annual report' on page 150 add the
following text:
The Commissioner is provided with discretion as to the manner of investigating complaints.
It is intended that this will support the development of intelligence gathering technologies
and assist in administering the complaints scheme effectively. The Commissioner is expected
to apply sound investigatory principles including procedural fairness in the conduct of
investigations.
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2. Clause 220 - Review of decisions
At the end of the section titled 'Clause 220 - Review of decisions' on page 165 add the
following text:
Decisions for not proceeding with an investigation fall into the category of preliminary or
procedural decisions and are not suitable for review.
3. Clause 160 - Commissioner may obtain advice from the Classification Board'
At 'Clause 160 - Commissioner may obtain advice from the Classification Board' and
following the paragraph commencing 'the Classification Board may give the advice
requested by the Commissioner' on page 143 add the following text:
The Commissioner is to assess and act on content under the Online Content Scheme in a way
that is intended to streamline the process for removing illegal or harmful content from the
internet, and reduce administrative costs associated with applications to the Classification
Board. The nature of the material to be dealt with under the Bill differs to the material dealt
with by the Classification Board, as it tends to be user generated rather than professionally
produced, and necessitates a rapid response.
4. Clause 235 - Liability of Australian hosting service providers and internet service
providers under State and Territory laws etc.
After the paragraph commencing 'Clause 235(1)' on page 171 add the following text:
Clause 235 is intended to respond to a situation where a state or territory law has a direct or
indirect effect of regulating service providers in a way that is inconsistent with the principle
that these types of service providers are not generally aware of the content on their services
and do not monitor the content on their services.
Clause 235 is intended to work in conjunction with clause 234 to give effect to the principle
that the Commonwealth will provide a nationally consistent framework for the activities of
hosting service providers and internet service providers, without encroaching on the power of
the States in areas of defamation or criminal law.
5. Clause 95 - Blocking requests
After the paragraph commencing 'Subclause 95(3)' on page 117 add the following text:
It is expected that the Commissioner would act impartially, and in a way that can be
objectively assessed as not having prejudged a decision when exercising powers under clause
95.
6. Clause 209 - Disclosure to Secretary, or APS employees , for advising the Minister
After the paragraph commencing 'Clause 209' on page 160 add the following text:
Disclosure under these provisions is a necessary aspect of the constitutional principle of
responsible government and all parties are bound by the Privacy Act 1988.
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7. Clause 211 - Disclosure to Royal Commission
Clause 212 - Disclosure to certain authorities
Clause 213 - Disclosure to teachers or school principals
Clause 214 - Disclosure to parents or guardians
After the paragraph commencing 'This means that if the written conditions are in relation
to a particular disclosure' in 'Clause 211' on page 162, 'Clause 212' on page 163, 'Clause
213' on page 164, 'Clause 214' on page 164 add the following text:
The flexibility to impose conditions on the release of information under this clause is
necessary to deal with the variety of complaints received by the Commissioner. It is
impractical to list the conditions for every circumstance.
8. Clause 188 - Minister may give directions to the Commissioner
After the paragraph commencing 'Subclause 188(2)' on page 153 add the following text:
The Commissioner cannot be directed to make a specific regulatory decision.
9. Clause 27 - Functions of the Commissioner
After the paragraph commencing 'Subclauses 27(2) to (4) relate to grants of financial
assistance' on page 81 add the text:
The Commissioner is to administer programs in accordance with the Commonwealth
Government's grants guidelines. The Parliament is provided with the opportunity to
scrutinise expenditure, including funding to the Commissioner for grants, and the
administration of programs in accordance to the Commonwealth Government's grants
guidelines.
10. Clause 205 - Non-compliance with the requirement to give evidence
After the paragraph commencing 'Subclause 205(1)' on page 158 add the text:
Clause 205 relates to matters that are peculiarly within the knowledge of the defendant, and
would be significantly more difficult and costly for the prosecution to disprove than for the
defendant to establish the matter.
11. Clause 230 - Instruments under this Act may provide for matters by reference to
other instruments
At the start of the section titled 'Clause 230 - Instruments under this Act may provide for
matters by reference to other instruments' on page 170 add the text:
The flexibility provided by clause 230 of the Bill is intended to reduce administrative burden,
particularly with reference to technical or industry standards that may be updated frequently
due to technological or industry changes.
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12. Clause 181 - Delegation by the Commissioner to a member of the staff of the
ACMA'
At the start of the section titled 'Clause 181 - Delegation by the Commissioner to a
member of the staff of the ACMA' on page 150 add the text:
Clause 181 allows the Commissioner to delegate functions and powers to members of staff of
the ACMA. Delegation of functions and powers to appropriately qualified staff provides
necessary flexibility while reducing the administrative burden on the Commissioner.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
eSafety Commissioner
On page 51, after the paragraph:
The Bill establishes the eSafety Commissioner (the Commissioner) and sets out the
Commissioner's functions and powers. A key function of the Commissioner is to administer a
complaints system for cyber-bullying material targeted at an Australian child; a complaints
system for cyber-abuse material targeted at an Australian adult; a complaints and objections
system for non-consensual sharing of intimate images and an online content scheme. The
Commissioner has the power to investigate complaints and conduct such investigations as the
Commissioner sees fit.
Add the following text:
The Commissioner has the power to require the removal of certain types of material in certain
circumstances and is expected to take into account both the ability of the provider to comply
with the notice and the likely impact on other users of the service.
Human Rights Implications
On page 58, before the paragraph that begins 'In relation to the online content scheme'
insert the following paragraph:
A decision of the Commissioner to issue blocking notices would be subject to merits review
by the Administrative Appeals Tribunal under subclause 220(13) and internal review under
the internal review scheme that is required by clause 220A.
On page 58, after the paragraph that begins 'In relation to the online content scheme 'insert
the following paragraphs:
The Bill relies on the categories set out in the Classification (Publications, Films and
Computer Games) Act 1995 (Classification Act). To the extent possible, the principles and
community standards that underpin the classification system also underpin the Bill. These
principles include that adults should be able to read, hear, see and play what they want and
children should be protected from material that may harm or disturb them.
4
The Bill does not prohibit adults from viewing class 2 material online which includes
material depicting consensual sex between adults. As described in more detail below, it limits
the availability of class 2 material that would be classified 'X18+' material to sites hosted
overseas and requires class 2 material provided from Australia, that would be classified
'R18+,' to be behind a system limiting access to those under 18 years of age.
Class 1 material is material that has been, or is likely to be, classified 'Refused Classification'
under the Classification Act. It contains content that is very high in impact and falls outside
generally-accepted community standards. It includes non-consensual sexual activity, for
example descriptions or depictions of child sexual abuse or any other exploitative or
offensive descriptions or depictions involving a person who is, or appears to be, a child under
18 years, promotion or provision of instruction in paedophile activity, sexual violence and
bestiality. It also includes gratuitous, exploitative or offensive depictions of fetishes or
practices which are offensive or abhorrent or incest fantasies or other fantasies which are
offensive or abhorrent. Offline, films, computer games and publications that are classified
'Refused Classification' cannot be sold, hired, advertised or legally imported in Australia. To
the extent possible, the approach taken to this type of material under the Bill is consistent
with the offline approach. That is, it should not be accessible to Australian end-users and is
subject to removal notices.
Class 2 material may be material that has been, or would likely be, classified 'X18+' or
'Category 2 Restricted' under the Classification Act. This content contains real depictions of
actual sexual intercourse and other sexual activity between consenting adults. Any depictions
of non-adult persons or adult persons who look like they are under 18 years or portrayed to be
minors are not permitted. No violence, coercion or sexually assaultive language is permitted.
Fetishes such as body piercing, application of substances such as candle wax, 'golden
showers', bondage, spanking or fisting are also not permitted. Offline, X18+ material is
restricted to adults and is only available for sale or hire in the Australian Capital Territory and
some parts of the Northern Territory. Category 2 Restricted publications may not be publicly
displayed and may only be displayed in premises that are restricted to adults such as adult
shops. To the extent possible, the approach taken with respect to this type of material under
the Bill is consistent with the approach taken offline. That is, in the offline world this type of
material should not be displayed in public spaces where it can be accessed by children and
online it would be subject to removal notices where available on a service provided from
Australia. This approach also recognises the jurisdictional limitations in enforcing Australian
community standards overseas.
Class 2 material may also be material that has been, or would likely be, classified 'R18+' or
'Category 1 Restricted' under the Classification Act. This material is considered to be
unsuitable for minors and may offend some sections of the adult community. Both offline and
online this type of material must be restricted to adults. This is consistent with the principles
that adults should be able to read, hear, see and play what they want, minors should be
protected from material likely to harm or disturb them and everyone should be protected from
exposure to unsolicited material they find offensive.
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The nature of the class 1 and class 2 material covered by the proposed online content scheme
is such that unrestricted access would be harmful to Australians, particularly children, and
accordingly to the extent that the Bill lawfully restricts freedom of speech through these
provisions, those restrictions are reasonable, proportionate and necessary to achieve the
legitimate objective of protecting Australians online.
In practice, the Commissioner would consider the context or purpose for which the material
was published during an investigation, including whether it is in the public interest. Under
clause 42 the Commissioner may conduct any investigation as they think fit and may refuse
to investigate a complaint under clause 43.
The approach taken under the Bill with respect to the removal of certain class 2 material
provided from Australia is consistent with the approach taken to this type of material offline.
Both online and offline systems seek to limit the provision of this type of material while
recognising that adults have the right to read, see, hear and play what they want and minors
should be protected from material that may harm or disturb them.
Clause 108 of the Bill allows the Commissioner 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 online material for the purposes of the Bill. The purpose of a restricted access
system declaration is not to prevent access to age-restricted content, but to seek to ensure that
access is limited to persons 18 years and over and that the methods used for limiting this
access meet a minimum standard.
The Commissioner would consult with industry in the development of any restricted access
system declaration made under the regime. Industry is best placed to consider the most
appropriate system for restricting access to content on their services, including whether a
particular system requires the provision of personal information to log in and what
protections should be in place to secure that information.
The interests of service providers are protected under the scheme through the review of
decisions procedures provided by clauses 220 and 220A of the Bill.
Clause 220 provides for the review, by the Administrative Appeals Tribunal (AAT), of
certain decisions made by the Commissioner, and sets out who may make an application for
such review.
Internal review of the Commissioner's decisions is provided by clause 220A, under which the
Commissioner must, by notifiable instrument, formulate a scheme for internal review of
decisions of a kind referred to in clause 220. These decisions include review of a decision by
the Commissioner under clauses 109, 110, 114, 115, 119, 120, 124 and 128.
Under subclause 220A (2) the internal review scheme may empower the Commissioner to, on
application, review such a decision and affirm, vary or revoke the decision concerned.
On page 64 under the heading 'Best interests of the child', and after the existing paragraphs
insert the following paragraphs:
The CROC also recognises the right of a child not to be subjected to unlawful attacks on their
honour and reputation. By providing remedies for a child who is the target of such material,
the Bill advances these rights.
6
Under subclause 213(1), the Commissioner may disclose information to a teacher or school
principal if satisfied that the information will assist in the resolution of a complaint about
cyber-bullying of a child made under clause 30 of the Bill. For example, where cyber-
bullying involves a group of school students, enlisting the help of the school or schools
attended by the students may be the quickest and most effective means of resolving the
complaint. Subclause 213(2) allows the Commissioner to impose written conditions to be
complied with in relation to information disclosed under subclause 213(1). For example, the
Commissioner may impose a condition preventing secondary disclosures to third parties.
Similarly, subclause 214(1) enables the Commissioner to disclose information to a parent or
guardian of an Australian child if the Commissioner is satisfied that the information will
assist in the resolution of a complaint made under clause 30 of the Bill. Subclause 214(2)
allows the Commissioner to impose written conditions to be complied with in relation to
information disclosed under subclause 214(1). Such conditions may include a requirement
preventing secondary disclosures to third parties.
Resolution of a complaint by teachers or principals, or parents or guardians, has advantages
over the more formal regulatory channels available under the Bill. Disclosure under clauses
213 and 214 may help quickly resolve the cyber-bullying complaint and as such promote the
rights of the child.
It would be expected that the Commissioner would consider the child's views, consistent with
the child's age and maturity, in deciding whether or not to exercise the Commissioner's
discretion to disclose information under clauses 213 and 214. Part 15 of the Bill provides that
the Commissioner may disclose information in certain circumstances. It should be noted that
Part 15 does not require disclosure.
On page 61 after the paragraph beginning 'Clause 212 of the Bill' insert the following
paragraphs:
Subclause 212(1) of the Bill provides the Commissioner may disclose information to any of a
variety of authorities listed in that clause, if satisfied that the information will enable or assist
the authority to perform or exercise any of its functions or powers.
Paragraph 212(1)(h) and paragraph 212(1)(i) allows the Commissioner to disclose
information to an authority of a foreign country that is responsible for regulating matters or
enforcing laws of that country relating to either or both the capacity of individuals to use
social media services, relevant electronic services and designated internet services in a safe
manner, or material that is accessible to, or delivered to, end-users of social media services,
relevant electronic services and designated internet services.
Subclause 212(2) allows the Commissioner to impose written conditions to be complied with
in relation to information disclosed under subclause 212(1). This provides a safeguard by
which the Commissioner may limit further disclosure of the information, where it is
appropriate to do so.
By authorising the disclosure of information obtained by the Commissioner, to the authorities
of foreign countries for the purpose of assisting them to perform or exercise any of their
functions or powers, clause 212 engages and limits the right to privacy. However, the
provision is necessary to allow the authorities to protect the best interests of affected children
and victims of cyber-abuse and image-based abuse.
7
Where information is provided to foreign law enforcement, it would be provided via
Australian Federal Police and Interpol. The manner in which any information is provided
would therefore be consistent with the protocol of not disclosing law enforcement
information to foreign agencies in circumstances where it might lead to prosecution involving
the death penalty.
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