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
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the Minister for Communications, Urban Infrastructure, Cities and
the Arts, the Hon Paul Fletcher MP)
ONLINE SAFETY BILL 2021
OUTLINE
The purpose of the Online Safety Bill (the Bill) is to create a new framework for online safety
for Australians.
The Bill, together with the Online Safety (Transitional Provisions and Consequential
Amendments) Bill 2021, will create a modern, fit for purpose regulatory framework that
builds on the strengths of the existing legislative scheme for online safety. In particular, the
Bill will:
retain and replicate provisions in the Enhancing Online Safety Act 2015 (EOSA) that
are working well to protect Australians from online harms, such as the non-
consensual sharing of intimate images scheme;
articulate a core set of basic online safety expectations to improve and promote online
safety for Australians;
reflect a modernised online content scheme to replace the schemes in Schedules 5 and
7 of the Broadcasting Services Act 1992 (BSA) to address harmful online content;
create a new complaints-based, removal notice scheme for cyber-abuse being
perpetrated against an Australian adult;
broaden the cyber-bullying scheme to capture harms occurring on services other than
social media;
reduce the timeframe for service providers to respond to a removal notice from the
eSafety Commissioner from 48 to 24 hours;
bring providers of app distribution services and internet search engine services clearly
into the remit of the new online content scheme;
establish a specific and targeted power for the eSafety Commissioner to request or
require internet service providers (ISPs) to disable access to material depicting,
promoting, inciting or instructing in abhorrent violent conduct, for time-limited
periods in crisis situations, reflecting industry's call for Government leadership on this
issue.
This supplementary explanatory memorandum responds to concerns raised by the
Senate Environment and Communications Legislation Committee in its report of its Inquiry
into the Online Safety Bill 2021 and the Online Safety (Transitional Provisions and
Consequential Amendments) Bill 2021 of 12 March 2021.
The Government amendments include:
additional transparency requirements for the Commissioner's annual report under
clause 183 to include reports on investigations and the use of powers under the Bill;
new provisions requiring the Commissioner to establish an internal review scheme for
decisions made by the Commissioner under the Bill and publish the scheme on the
Commissioner's website; and
amendments to the Explanatory Memorandum to address matters raised in
consideration of the Bill by the Senate Environment and Communications Legislation
Committee.
.
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FINANCIAL IMPACT STATEMENT
The Government amendments will not have any impact on the overall costings for the
package of reforms.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Online Safety Bill 2021
These amendments are compatible with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Overview of the amendments
The amendments propose:
additional transparency requirements for the Commissioner's annual report under
clause 183 to include reports on investigations and the use of powers under the Bill;
new provisions relating to the establishment of an internal review scheme by the
Commissioner; and
amendments to the Explanatory Memorandum to address matters raised in
consideration of the Bill by the Senate Environment and Communications Legislation
Committee.
Human Rights Implications
A detailed Human Rights Statement was prepared for the Bill. This statement is amended to
reflect the enhanced requirements for review of decisions proposed in the amendments :
Heading Image-based abuse, cyber-bullying and adult cyber-abuse
Page 57 before:
The right to freedom of expression is further protected under the Bill in that end-users
who are subject to notices regarding the removal of cyber-bullying material, adult
cyber-abuse material and intimate image material, can appeal those decisions to the
Administrative Appeals Tribunal, and have them reviewed by that Tribunal on their
merits.
Add the following text
Individuals and organisations will be afforded due process and natural justice in
relation to complying with notices under the Bill. The Bill provides that the
Commissioner must have in place an internal review scheme through which providers
and end-users may apply to the Commissioner for review of a decision to give or
refuse to give a notice to remove cyber-bullying material, adult cyber-abuse material
and intimate image material. The Commissioner must publish the internal review
scheme on the Commissioner's website.
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Heading: In relation to the blocking power,
Page 58 at the end of the section, add the following text:
ISPs are afforded a right of reply under the Bill in relation to blocking notices. The
Bill provides that the Commissioner must have in place an internal review scheme
through which ISPs may apply to the Commissioner for review of a decision to give a
blocking notice. The Commissioner must publish the internal review scheme on the
Commissioner's website.
A decision to give a blocking notice under the Bill may also be brought before the
Administrative Appeals Tribunal for merits review.
Heading In relation to the online content scheme,
Page 59 before the sentence beginning 'Finally, clause 233 of the Bill', add the following
text:
Service providers are afforded a right of reply under the Bill in relation to certain
notices given under the online content scheme. The Bill provides that the
Commissioner must have in place an internal review process through which service
providers may apply to the Commissioner for review of a decision to give a removal
notice, remedial notice, link deletion notice or app removal notice under the online
content scheme. The Commissioner must publish the internal review scheme on the
Commissioner's website.
A decision to give a removal notice, remedial notice, link deletion notice or app
removal notice may also be brought before the Administrative Appeals Tribunal for
merits review.
Conclusion
The amendments do not engage any human rights issues beyond those identified in the
original Statement of Compatibility of Human Rights prepared for the Online Safety Bill.
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AMENDMENTS TO THE ONLINE SAFETY BILL NOTES ON CLAUSES
Amendment item 1 Clause 181 Delegation by the Commissioner
Item 1 adds a subclause (4) to clause 181 to clarify that the Commissioner may not delegate
the function or powers relating to formulation and varying of the internal review scheme to a
member of the staff of the ACMA.
Amendment item 2 Clause 182 Delegation by the Commissioner a contractor engaged by
the Commissioner
Item 2 inserts a subclause (3A) and a subclause (3B) after subclause 182(3) to provide that the
Commissioner may not delegate to a contractor engaged by the Commissioner:
the function or powers relating to the formulation or varying of the internal review
scheme (3A)
the function of power conferred by the internal review scheme (3B).
Amendment items 3 and 4 Clause 183 Annual Report
Items 3 and 4 amend clause 183 to include specific requirements for inclusion in the
Commissioner's annual report for a financial year. These are to include the number of times
in a financial year the Commissioner has exercised key powers; those which are not able to be
delegated to other officers under the Bill. These powers include the use of investigation
powers and to issue notices to require the removal of material. The intent of this amendment
is to strengthen the accountability and transparency of the Commissioner.
Amendment 4 inserts a new subclause 183(2) that the report must include the number, during
that financial year, of:
notices given by the Commissioner under clause 49 in relation to requiring a provider
of a social media service, relevant electronic service or designated internet service to
provide a periodic report about compliance with the basic online safety expectations;
notices given by the Commissioner under clause 56 in relation to requiring a provider
of a social media service, relevant electronic service or designated internet service to
provide a non-periodic report about compliance with the basic online safety
expectations;
notices given by the Commissioner under clause 65 in relation to requiring a provider
of a social media service, relevant electronic service or designated internet service to
remove cyber-bullying material targeted at an Australian child;
notices given by the Commissioner under clause 66 in relation to requiring a hosting
service provider to remove cyber-bullying material targeted at an Australian child;
notices given by the Commissioner under clause 70 in relation to requiring an end-
user to remove cyber-bullying material targeted at an Australian child;
notices given by the Commissioner under clause 77 in relation to requiring a provider
of a social media service, relevant electronic service or designated internet service to
remove intimate images shared without consent;
notices given by the Commissioner under clause 78 in relation to requiring an end-
user to remove intimate images shared without consent;
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notices given by the Commissioner under clause 79 in relation to requiring a provider
of a hosting service to remove intimate images shared without consent;
remedial directions given by the Commissioner under clause 83 requiring a person to
take specified action directed towards ensuring the person does not contravene a
prohibition in clause 75 of posting an intimate image without consent in the future;
notices given by the Commissioner under clause 88 in relation to requiring a provider
of a social media service, relevant electronic service or designated internet service to
remove cyber-abuse material targeted at an Australian adult;
notices given by the Commissioner under clause 89 in relation to requiring an end-
user to remove cyber-abuse material targeted at an Australian adult;
notices given by the Commissioner under clause 90 in relation to requiring a provider
of a hosting service to remove cyber-abuse material targeted at an Australian adult;
notices given by the Commissioner under clause 99 in relation to requiring internet
service providers to block material depicting, promoting, inciting or instructing in
abhorrent violent conduct;
notices given by the Commissioner under clause 109 in relation to requiring a provider
of a social media service, relevant electronic service or designated internet service to
remove class 1 material;
notices given by the Commissioner under clause 110 in relation to requiring a provider
of a hosting service to remove class 1 material;
notices given by the Commissioner under clause 114 in relation to requiring a provider
of a social media service, relevant electronic service or designated internet service to
remove class 2 material that has been or would be classified X18+ provided from
Australia;
notices given by the Commissioner under clause 115 in relation to requiring a provider
of a hosting service to remove class 2 content that has been or would be classified
X18+ provided from Australia;
remedial notices given by the Commissioner under clause 119 in relation to requiring
a provider of a social media service, relevant electronic service or designated internet
service to ensure material that has been or would be classified R18+ provided from
Australia is removed or behind a restricted access system;
remedial notices given by the Commissioner under clause 120 in relation to requiring
a provider of a hosting service to ensure material that would be classified R18+
provided from Australia is removed or behind a restricted access system;
notices given by the Commissioner under clause 124 to a provider of an internet
search engine service to delete a link;
notices given by the Commissioner under clause 128 to a provider of an app
distribution service to cease enabling end-users in Australia to download an app using
that service;
notices given by the Commissioner under clause 143 to a participant in a section of the
online industry required to comply with an industry code under the online content
scheme;
remedial directions given by the Commissioner under clause 154 to a participant in a
section of the online industry for a breach of service provider rules;
the number of applications made by the Commissioner to the Federal Court under
clauses 156, 157, 158 and 159 seeking an order for a person to cease providing a
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social media service, relevant electronic service, designated internet service or internet
carriage service;
the number of notices given by the Commissioner under clause 194 requiring a
provider of a social media service, designated internet service or relevant electronic
service to provide end-user identity information or contact details;
the number of notices given by the Commissioner under clause 199 in relation to
requiring a person to appear before the Commissioner or provider documents on
information in relation to an investigation;
the number of notices given by the Commissioner under clause 203 in relation to the
production of documents for inspection by the Commissioner; and
The number of decisions that were reviewed by the Commissioner under the internal
review scheme at clause 220A.
Amendment items 5 to 10 Review of decisions
Item 5 and item 6 are minor technical amendments to address oversights in drafting.
Items 7, 8 and 9 amend subclauses 220(2), 220(4) and 220(5), respectively, to omit references
to powers to review decisions of the Commissioner to issue removal notices to end-users
under clauses 78 and 89 in relation to non-consensual sharing of intimate images (clause 78)
and adult cyber-abuse (clause 89).
Item 10 inserts a new subclause 220(10A) to provide that an application may be made to the
Administrative Appeals Tribunal to review decisions to issue removal notices to end-users
under clauses 78 and 89 in relation to non-consensual sharing of intimate images (clause 78)
or adult cyber-abuse (clause 89).
Amendment item 11 Internal review of decisions
Item 11 inserts a new clause 220A in the Bill which provides that the Commissioner must, by
notifiable instrument, formulate a scheme (the internal review scheme) for and in relation to
the review by the Commissioner of decisions of a kind referred to in clause 220 (i.e.
Administrative Appeals Tribunal reviewable decisions).
Decisions made under the Online Safety Bill may impact on persons, including providers of a
social media service, relevant electronic service, designated internet service and end-users of
those services, as well as providers of a hosting service, internet carriage service or bodies or
associations representing sections of the online industry. It is the expectation of the
Parliament that there be due process and natural justice in how decisions are made by the
Commissioner unless the Act states the contrary intention.
Internal and external reviews of decisions are tools to demonstrate that decisions are made in
accordance with due process and natural justice. The Bill provides for the establishment of an
internal review scheme for those individuals or organisations impacted by decisions of the
Commissioner under the Bill. The AAT also serves an important function in conducting
independent merit reviews of administrative decisions made under Commonwealth laws.
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Note on Clause 220A Internal review of decisions
Clause 220A provides that the Commissioner must, by notifiable instrument, formulate a
scheme (the internal review scheme) for and in relation to the review by the Commissioner of
decisions of a kind referred to in section 220 (AAT reviewable decisions). The internal review
scheme empowers the Commissioner to, on application, review such decisions and affirm,
vary or revoke the decision concerned. The Commissioner may vary the internal review
scheme. The scheme must be published on the Commissioner's website.
AMENDMENTS TO ONLINE SAFETY BILL EXPLANATORY MEMORANDUM
Amendment to Note on Clause 2 - Commencement
At the end of the Note on Clause 2 add the following text:
It is the intention of the Government that the Online Safety Act commence six months
after the Act receives the Royal Assent.
Amendment to Note on Clause 18
At the end of the Note on Clause 18 add the following text:
It is the intention that this would include material provided on an on-demand service
in the ordinary course of the service conducting business.
Amendment to Note on Clause 137 - Statement of Regulatory Policy
At the end of the note on subclause 137(2) add the following text:
This requirement is for best endeavours and the Commissioner has the discretion to
work with industry over whatever timeframe is deemed necessary to achieve an
effective outcome.
This amendment addresses recommendation 1 of the Senate Environment and
Communications Legislation Committee in its report of its Inquiry into the Online Safety Bill
2021 and the Online Safety (Transitional Provisions and Consequential Amendments) Bill
2021 of 12 March 2021.
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