ENHANCING ONLINE SAFETY FOR CHILDREN BILL 2014

2013-2014

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Enhancing Online Safety for Children

Bill 2014

No. , 2014

(Communications)

A Bill for an Act to enhance online safety for

children, and for other purposes

No. , 2014

Enhancing Online Safety for Children Bill 2014

Contents

Part 1--Preliminary

Short title ........................................................................................... 1

Commencement ................................................................................. 2

Simplified outline of this Act ............................................................. 2

Definitions ......................................................................................... 3

Cyber-bullying material targeted at an Australian child .................... 7

When material is provided on a social media service or

relevant electronic service ................................................................. 8

When material is posted by an end-user of a social media

service or relevant electronic service ................................................. 8

When material is removed from a social media service or

relevant electronic service ................................................................. 8

Social media service .......................................................................... 9

Crown to be bound ........................................................................... 10

Application of this Act ..................................................................... 10

Convention on the Rights of the Child ............................................ 10

Part 2--Children's e-Safety Commissioner

Simplified outline of this Part .......................................................... 11

Children's e-Safety Commissioner .................................................. 11

Functions of the Commissioner ....................................................... 11

Powers of the Commissioner ........................................................... 13

Part 3--Complaints about cyber-bullying material

Simplified outline of this Part .......................................................... 14

Complaints about cyber-bullying material ....................................... 14

Investigation of complaints .............................................................. 16

Part 4--Social media services

Division 1--Introduction

Simplified outline of this Part .......................................................... 17

Basic online safety requirements ..................................................... 17

Statement of Parliamentary expectations ......................................... 18

Division 2--Tier 1 social media services

Subdivision A--Declaration of tier 1 social media service

Declaration of tier 1 social media service ........................................ 19

Variation of declaration of tier 1 social media service--

change of name ................................................................................ 20

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Revocation of declaration of social media service as a tier 1

social media service ......................................................................... 20

Notification of changes to terms of use of tier 1 social media

service .............................................................................................. 21

Notification of change of contact person etc.................................... 21

Subdivision B--Request for removal of cyber-bullying material

Request for removal of cyber-bullying material .............................. 22

Division 3--Tier 2 social media services

Subdivision A--Declaration of tier 2 social media service

Declaration of tier 2 social media service ........................................ 25

Recommendation about declaration of a tier 2 social media

service .............................................................................................. 25

Variation of declaration of tier 2 social media service--

change of name ................................................................................ 27

Revocation of declaration of social media service as a tier 2

social media service ......................................................................... 27

Subdivision B--Social media service notices

Social media service notice .............................................................. 28

Compliance with social media service notice .................................. 29

Formal warning ................................................................................ 29

Division 4--Non-compliant social media services

Non-compliance with the basic online safety requirements ............. 30

Non-compliance with a request for removal of

cyber-bullying material .................................................................... 30

Non-compliance with a social media service notice ........................ 30

Part 5--End-user notices

Simplified outline of this Part .......................................................... 31

End-user notice ................................................................................ 31

Compliance with end-user notice ..................................................... 32

Formal warning ................................................................................ 32

Part 6--Enforcement

Simplified outline of this Part .......................................................... 33

Civil penalty provision ..................................................................... 33

Enforceable undertakings ................................................................ 34

Injunctions ....................................................................................... 35

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iii

Part 7--Administrative provisions relating to the

Commissioner

Division 1--Introduction

Simplified outline of this Part .......................................................... 36

Division 2--Appointment of the Commissioner

Appointment of the Commissioner .................................................. 37

Period of appointment for the Commissioner .................................. 37

Acting appointments ........................................................................ 37

Division 3--Terms and conditions for the Commissioner

Remuneration and allowances ......................................................... 39

Leave of absence .............................................................................. 39

Outside employment ........................................................................ 39

Disclosure of interests to the Minister ............................................. 39

Resignation ...................................................................................... 40

Termination of appointment ............................................................ 40

Other terms and conditions .............................................................. 40

Division 4--Other matters

Supplementary powers ..................................................................... 41

Commissioner's liabilities are Commonwealth liabilities ............... 41

Commissioner has privileges and immunities of the Crown ............ 41

Delegation by the Commissioner to a member of the staff of

the ACMA etc. ................................................................................. 42

Delegation by the Commissioner to a body corporate ..................... 42

Sub-delegation by body corporate ................................................... 44

Annual report ................................................................................... 44

Assistance to the Commissioner ...................................................... 44

Commissioner not subject to direction by the ACMA ..................... 45

Consultants ...................................................................................... 46

Minister may give directions to the Commissioner ......................... 46

Part 8--Children's Online Safety Special Account

Simplified outline of this Part .......................................................... 47

Children's Online Safety Special Account ...................................... 47

Credits to the Account ..................................................................... 47

Purposes of the Account .................................................................. 48

Part 9--Disclosure of information

Simplified outline of this Part .......................................................... 49

Scope ............................................................................................... 49

Disclosure to Minister ...................................................................... 49

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Disclosure to APS employees for advising the Minister.................. 49

Disclosure to Royal Commissions ................................................... 49

Disclosure to certain authorities ....................................................... 50

Disclosure to teachers or school principals ...................................... 51

Disclosure to parents or guardians ................................................... 51

Disclosure with consent ................................................................... 51

Disclosure of publicly available information ................................... 52

Disclosure of summaries and statistics ............................................ 52

Relationship with Part 13 of the Telecommunications Act

1997 ................................................................................................. 52

Part 10--Miscellaneous

Simplified outline of this Part .......................................................... 53

Review of decisions ......................................................................... 53

Protection from civil proceedings .................................................... 54

Liability for damages ....................................................................... 54

Protection from criminal proceedings--Commissioner etc. ............ 55

Referral of matters to law enforcement agencies ............................. 56

Deferral of action in order to avoid prejudicing a criminal

investigation ..................................................................................... 57

Copies of material ............................................................................ 57

Compensation for acquisition of property ....................................... 57

Service of notices by electronic means ............................................ 58

Service of notices on contact person etc. ......................................... 58

This Act does not limit Schedule 5 or 7 to the Broadcasting

Services Act 1992 ............................................................................. 59

This Act does not limit the Telecommunications Act 1997 .............. 59

100

Implied freedom of political communication ................................... 59

101

Concurrent operation of State and Territory laws ............................ 60

102

This Act not to affect performance of State or Territory

functions .......................................................................................... 60

103

Revocation or variation of instruments ............................................ 60

104

105

Provider of social media service or relevant electronic

service .............................................................................................. 61

106

Extended meaning of use ................................................................. 61

107

Review of this Act etc. ..................................................................... 61

108

Legislative rules ............................................................................... 62

Part 1 Preliminary

Section 2

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2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. Sections 1 and

2 and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Sections 3 to

108

A single day to be fixed by Proclamation.

However, if the provisions do not commence

within the period of 6 months beginning on

the day this Act receives the Royal Assent,

they commence on the day after the end of

that period.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Simplified outline of this Act

•

There is to be a Children's e-Safety Commissioner.

•

A key function of the Commissioner is to administer a

complaints system for cyber-bullying material targeted at an

Australian child.

•

The complaints system includes the following components:

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(a)

a 2-tiered scheme for the rapid removal from social

media services of cyber-bullying material targeted at an

Australian child;

(b)

a tier 1 social media service may be requested to remove

from the service cyber-bullying material targeted at an

Australian child;

(c)

a tier 2 social media service may be given a notice (a

social media service notice) requiring the removal from

the service of cyber-bullying material targeted at an

Australian child;

(d)

a person who posts cyber-bullying material targeted at

an Australian child may be given a notice (an end-user

notice) requiring the person to remove the material,

refrain from posting cyber-bullying material or

apologise for posting the material.

•

The functions of the Commissioner also include:

(a)

promoting online safety for children; and

(b)

coordinating activities of Commonwealth Departments,

authorities and agencies relating to online safety for

children; and

(c)

administering the online content scheme that was

previously administered by the ACMA.

4 Definitions

In this Act:

access includes:

(a) access that is subject to a pre-condition (for example, the use

of a password); and

(b) access by way of push technology; and

account includes:

(a) a free account; and

(b) a pre-paid account; and

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of an account.

ACMA means the Australian Communications and Media

Authority.

adult means an individual who is 18 or older.

Appropriation Act means an Act appropriating money for

expenditure out of the Consolidated Revenue Fund.

Australia, when used in a geographical sense, includes all the

external Territories.

Australian child means a child who is ordinarily resident in

Australia.

Australian police force means:

(a) the Australian Federal Police; or

(b) the police force of a State or Territory.

basic online safety requirements has the meaning given by

section 21.

carriage service has the same meaning as in the

Telecommunications Act 1997.

child means an individual who has not reached 18 years.

Children's Online Safety Special Account means the Children's

Online Safety Special Account established by section 72.

civil proceeding includes a civil action.

Commissioner means the Children's e-Safety Commissioner.

Note:

See section 14.

Convention on the Rights of the Child means the Convention on

the Rights of the Child done at New York on 20 November 1989.

Note:

The Convention is in Australian Treaty Series 1991 No. 4 ([1991]

ATS 4) and could in 2014 be viewed in the Australian Treaties

Library on the AustLII website (http://www.austlii.edu.au).

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cyber-bullying material targeted at an Australian child has the

meaning given by section 5.

de-identified: information is de-identified if the information is no

longer about:

(a) an identifiable individual; or

(b) an individual who is reasonably identifiable.

electronic service means:

(a) a service that allows end-users to access material using a

carriage service; or

(b) a service that delivers material to persons having equipment

appropriate for receiving that material, where the delivery of

the service is by means of a carriage service;

but does not include:

Broadcasting Services Act 1992); or

(d) a datacasting service (within the meaning of that Act).

end-user notice means a notice under subsection 42(1).

legislative rules means rules made under section 108.

material means material:

(a) whether in the form of text; or

(b) whether in the form of data; or

(d) whether in the form of visual images (moving or otherwise);

(e) whether in any other form; or

(f) whether in any combination of forms.

online safety for children means the capacity of Australian

children to use social media services and electronic services in a

safe manner, and includes the protection of Australian children

using those services from cyber-bullying material targeted at an

Australian child.

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parent: without limiting who is a parent of anyone for the purposes

of this Act, a person is the parent of another person if the other

person is a child of the person within the meaning of the Family

Law Act 1975.

posted by an end-user of a social media service or relevant

electronic service has the meaning given by section 7.

provided on a social media service or relevant electronic service

has the meaning given by section 6.

provider of a social media service or relevant electronic service has

a meaning affected by section 105.

relevant electronic service means any of the following electronic

services:

(a) a service that enables end-users to communicate, by means of

email, with other end-users;

(b) an instant messaging service that enables end-users to

communicate with other end-users;

other end-users;

(d) an MMS service that enables end-users to communicate with

other end-users;

(e) a chat service that enables end-users to communicate with

other end-users;

(f) a service that enables end-users to play online games with

other end-users;

(g) an electronic service specified in the legislative rules.

Note 1:

SMS is short for short message service.

Note 2:

MMS is short for multimedia message service.

removed from a social media service or relevant electronic service

has the meaning given by section 8.

service includes a website.

social media service has the meaning given by section 9.

social media service notice means a notice under subsection 35(1).

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target of cyber-bullying material has the meaning given by

section 5.

terms of use includes anything that may be reasonably regarded as

the equivalent of terms of use.

tier 1 social media service means a social media service covered

by a declaration under subsection 23(4).

tier 2 social media service means a social media service covered

by a declaration under subsection 30(1).

use has a meaning affected by section 106.

5 Cyber-bullying material targeted at an Australian child

(1) For the purposes of this Act, if material satisfies the following

conditions:

(a) the material is provided on a social media service or relevant

electronic service;

(b) an ordinary reasonable person would conclude that:

(i) it is likely that the material was intended to have an

effect on a particular Australian child; and

(ii) the material would be likely to have the effect on the

Australian child of seriously threatening, seriously

intimidating, seriously harassing or seriously

humiliating the Australian child;

rules;

then:

(d) the material is cyber-bullying material targeted at the

Australian child; and

(e) the Australian child is the target of the material.

(2) An effect mentioned in subsection (1) may be:

(a) a direct result of the material being accessed by, or delivered

to, the Australian child; or

(b) an indirect result of the material being accessed by, or

delivered to, one or more other persons.

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(3) Subsection (1) has effect subject to subsection (4).

(4) For the purposes of this Act, if:

(a) a person is:

(i) in a position of authority over an Australian child; and

(ii) an end-user of a social media service or relevant

electronic service; and

(b) in the lawful exercise of that authority, the person posts

material on the service; and

reasonable manner;

the material is taken not to be cyber-bullying material targeted at

the Australian child.

6 When material is provided on a social media service or relevant

electronic service

For the purposes of this Act, material is provided on a social media

service or relevant electronic service if the material is accessible to,

or delivered to, one or more of the end-users using the service.

7 When material is posted by an end-user of a social media service

or relevant electronic service

For the purposes of this Act, material is posted on a social media

service or relevant electronic service by an end-user if the end-user

causes the material to be accessible to, or delivered to, one or more

other end-users using the service.

8 When material is removed from a social media service or relevant

electronic service

For the purposes of this Act, material is removed from a social

media service or relevant electronic service if the material is

neither accessible to, nor delivered to, any of the end-users in

Australia using the service.

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9 Social media service

(1) For the purposes of this Act, social media service means:

(a) an electronic service that satisfies the following conditions:

(i) the sole or primary purpose of the service is to enable

online social interaction between 2 or more end-users;

(ii) the service allows end-users to link to, or interact with,

some or all of the other end-users;

(iii) the service allows end-users to post material on the

service;

(iv) such other conditions (if any) as are set out in the

legislative rules; or

(b) an electronic service specified in the legislative rules;

but does not include an exempt service (as defined by

subsection (4) or (5)).

Note:

Online social interaction does not include (for example) online

business interaction.

(2) For the purposes of subparagraph (1)(a)(i), online social interaction

includes online interaction that enables end-users to share material

for social purposes.

Note:

Social purposes does not include (for example) business purposes.

(3) In determining whether the condition set out in

subparagraph (1)(a)(i) is satisfied, disregard any of the following

purposes:

(a) the provision of advertising material on the service;

(b) the generation of revenue from the provision of advertising

material on the service.

Exempt services

(4) For the purposes of this section, a service is an exempt service if:

(a) none of the material on the service is accessible to, or

delivered to, one or more end-users in Australia; or

(b) the service is specified in the legislative rules.

(5) If the Commissioner is satisfied that:

(a) an electronic service has controls on:

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(i) who can access material, or who can be delivered

material, provided on the service; or

(ii) the material that can be posted on the service; and

(b) those controls will be effective in achieving the result that

none of the material provided on the service could be

cyber-bullying material targeted at an Australian child;

the Commissioner may, by writing, declare that the service is an

exempt service for the purposes of this section.

(6) A declaration made under subsection (5) is not a legislative

instrument.

10 Crown to be bound

This Act binds the Crown in each of its capacities.

11 Application of this Act

(1) This Act extends to every external Territory.

(2) This Act extends to acts, omissions, matters and things outside

Australia.

12 Convention on the Rights of the Child

(1) In the performance of functions conferred by or under this Act, the

Commissioner must, as appropriate, have regard to the Convention

on the Rights of the Child.

(2) Subsection (1) does not limit the matters to which the

Commissioner may have regard.

Children's e-Safety Commissioner Part 2

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Part 2--Children's e-Safety Commissioner

13 Simplified outline of this Part

•

There is to be a Children's e-Safety Commissioner.

•

A key function of the Commissioner is to administer a

complaints system for cyber-bullying material targeted at an

Australian child.

•

The functions of the Commissioner also include:

(a)

promoting online safety for children; and

(b)

coordinating activities of Commonwealth Departments,

authorities and agencies relating to online safety for

children; and

(c)

administering the online content scheme that was

previously administered by the ACMA.

Note:

For administrative provisions relating to the Commissioner, see Part 7.

14 Children's e-Safety Commissioner

There is to be a Children's e-Safety Commissioner.

Note:

In this Act, Commissioner means the Children's e-Safety

Commissioner (see section 4).

15 Functions of the Commissioner

(1) The functions of the Commissioner are:

(a) such functions as are conferred on the Commissioner by:

(i) this Act; or

(ii) Schedules 5 and 7 to the Broadcasting Services Act

1992; or

(iii) any other law of the Commonwealth; and

(b) to promote online safety for children; and

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improve online safety for children; and

(d) to coordinate activities of Commonwealth Departments,

authorities and agencies relating to online safety for children;

and

(e) to collect, analyse, interpret and disseminate information

relating to online safety for children; and

(f) to support, encourage, conduct, accredit and evaluate

educational, promotional and community awareness

programs that are relevant to online safety for children; and

(g) to make, on behalf of the Commonwealth, grants of financial

assistance in relation to online safety for children; and

(h) to support, encourage, conduct and evaluate research about

online safety for children; and

(i) to publish (whether on the internet or otherwise) reports and

papers relating to online safety for children; and

(j) to give the Minister reports about online safety for children;

and

(k) to advise the Minister about online safety for children; and

(l) to consult and cooperate with other persons, organisations

and governments on online safety for children; and

(m) to advise and assist persons in relation to their obligations

under this Act; and

(n) to monitor compliance with this Act; and

(o) to promote compliance with this Act; and

(p) to formulate, in writing, guidelines or statements that:

(i) recommend best practices for persons and bodies

involved in online safety for children; and

(ii) are directed towards facilitating the timely and

appropriate resolution of incidents involving

cyber-bullying material targeted at an Australian child;

and

(q) to promote guidelines and statements formulated under

paragraph (p); and

(r) such other functions (if any) as are specified in the legislative

rules; and

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(s) to do anything incidental to or conducive to the performance

of any of the above functions.

Grants

(2) Financial assistance may be granted under paragraph (1)(g) to:

(a) a State; or

(b) a Territory; or

(3) The terms and conditions on which financial assistance is granted

under paragraph (1)(g) are to be set out in a written agreement

between the Commonwealth and the grant recipient.

(4) An agreement under subsection (3) is to be entered into by the

Commissioner on behalf of the Commonwealth.

Guidelines and statements are not legislative instruments

(5) Guidelines and statements formulated under paragraph (1)(p) are

not legislative instruments.

16 Powers of the Commissioner

The Commissioner has power to do all things necessary or

convenient to be done for or in connection with the performance of

his or her functions.

Note:

For supplementary powers, see section 60.

Part 3 Complaints about cyber-bullying material

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Part 3--Complaints about cyber-bullying material

17 Simplified outline of this Part

•

There is a complaints system for cyber-bullying material

targeted at an Australian child.

18 Complaints about cyber-bullying material

Complaint made by an Australian child

(1) If an Australian child has reason to believe that he or she was or is

the target of cyber-bullying material that has been, or is being,

provided on a particular social media service or relevant electronic

service, the child may make a complaint to the Commissioner

about the matter.

Complaint made on behalf of an Australian child

(2) If:

(a) a person (the responsible person) has reason to believe that

cyber-bullying material targeted at an Australian child has

been, or is being, provided on a particular social media

service or relevant electronic service; and

(b) either:

(i) the responsible person is a parent or guardian of the

child; or

(ii) the child has authorised the responsible person to make

a complaint about the matter;

the responsible person may, on behalf of the child, make a

complaint to the Commissioner about the matter.

Complaint made by an adult who was an Australian child

(3) If:

(a) a person is an adult; and

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(b) the person has reason to believe that, when he or she was an

Australian child, he or she was the target of cyber-bullying

material that was provided on a particular social media

service or relevant electronic service;

the person may make a complaint to the Commissioner about the

matter, so long as:

person became aware of the matter; and

(d) the complaint is made within 6 months after the person

reached 18 years.

Complaint about material that was provided on a social media

service

(4) If:

(a) a complaint made by a person under this section concerns

material that has been, or is being, provided on a tier 1 social

media service; and

(b) the person wants the Commissioner to give the provider of

the service a notice under section 29 requesting the provider

to remove the material from the service;

the complaint under this section must be accompanied by evidence

that the material was the subject of a complaint that was previously

made under the service's complaints scheme.

(5) If:

(a) a complaint made by a person under this section concerns

material that has been, or is being, provided on a tier 2 social

media service; and

(b) the person wants the Commissioner to give the provider of

the service a social media service notice requiring the

provider to remove the material from the service;

the complaint under this section must be accompanied by evidence

that the material was the subject of a complaint that was previously

made under the service's complaints scheme.

Note:

A social media service notice is given under section 35.

(6) For the purposes of subsections (4) and (5), evidence must be in a

form required by the Commissioner.

Part 3 Complaints about cyber-bullying material

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(7) If a social media service issues a receipt or complaint number to a

complainant as part of its ordinary business processes, the

Commissioner may require evidence to be in the form of the

receipt or complaint number.

(8) If a social media service does not issue a receipt or complaint

number to a complainant as part of its ordinary business processes,

the Commissioner may require evidence to be:

(a) in the form of a screen shot; or

(b) in the form of a statutory declaration; or

(9) Subsections (7) and (8) do not limit subsection (6).

(10) A requirement under subsection (6), (7) or (8) is not a legislative

instrument.

19 Investigation of complaints

(1) The Commissioner may investigate a complaint made under

section 18.

(2) An investigation under this section is to be conducted as the

Commissioner thinks fit.

(3) The Commissioner may, for the purposes of an investigation,

obtain information from such persons, and make such inquiries, as

he or she thinks fit.

(4) Subsections (1), (2) and (3) have effect subject to Part 13 of the

Broadcasting Services Act 1992 (which confers certain

investigative powers on the Commissioner).

Termination of investigation

(5) The Commissioner may terminate an investigation under this

section.

Social media services Part 4

Introduction Division 1

Section 20

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Part 4--Social media services

Division 1--Introduction

20 Simplified outline of this Part

•

The Parliament expects that each social media service will

comply with the basic online safety requirements.

•

There is a 2-tiered scheme for the rapid removal from social

media services of cyber-bullying material targeted at an

Australian child.

•

A tier 1 social media service may be requested to remove from

the service cyber-bullying material targeted at an Australian

child.

•

A tier 2 social media service may be given a notice (a social

media service notice) requiring the removal from the service

of cyber-bullying material targeted at an Australian child.

21 Basic online safety requirements

(1) For the purposes of this Act, the basic online safety requirements

for a social media service are as follows:

(a) the service's terms of use must contain:

(i) a provision that prohibits end-users from posting

cyber-bullying material on the service; or

(ii) a provision that may reasonably be regarded as the

equivalent of a provision covered by subparagraph (i);

(b) the service must have a complaints scheme under which

end-users of the service can request the removal from the

service of cyber-bullying material that breaches the service's

(i) an employee or agent of the provider of the service; and

Part 4 Social media services

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(ii) designated as the service's contact person for the

purposes of this Act;

(d) the contact details of the contact person must be notified to

the Commissioner.

Note:

See also section 104 (terms of use).

Cyber-bullying material

(4) For the purposes of paragraphs (2)(b) and (3)(b), cyber-bullying

material has its ordinary meaning.

Social media services Part 4

Tier 2 social media services Division 3

Section 30

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Division 3--Tier 2 social media services

Subdivision A--Declaration of tier 2 social media service

30 Declaration of tier 2 social media service

(1) The Minister may, by legislative instrument, declare that a

specified social media service is a tier 2 social media service for

the purposes of this Act.

(2) The Minister must not declare that a social media service is a tier 2

social media service unless the Commissioner has, under

section 31, recommended the making of the declaration.

31 Recommendation about declaration of a tier 2 social media

service

(1) The Commissioner may recommend that the Minister make a

declaration under subsection 30(1) in relation to a specified social

media service.

Criteria for recommendation

(2) The Commissioner must not make a recommendation under

subsection (1) in relation to a social media service if the service is

a tier 1 social media service.

(3) The Commissioner must not make a recommendation under

subsection (1) in relation to a social media service unless:

(a) the Commissioner is satisfied that the social media service is

a large social media service; or

(b) the provider of the social media service has requested the

Commissioner to make the recommendation.

(4) If a social media service has never been a tier 1 social media

service, the Commissioner must not make a recommendation under

subsection (1) in relation to the service unless:

(a) at least 28 days before making the recommendation, the

Commissioner gave the provider of the service a written

Part 4 Social media services

Division 3 Tier 2 social media services

Section 31

Enhancing Online Safety for Children Bill 2014

No. , 2014

invitation to apply under subsection 23(1) for the declaration

of the service as a tier 1 social media service; and

(b) the provider failed to make such an application.

(5) In deciding whether to make a recommendation under

subsection (1) in relation to a social media service, the

Commissioner must have regard to:

(a) whether the service complies with the basic online safety

requirements; and

(b) whether the provider of the service has failed to make an

application under subsection 23(1) for a declaration of the

service as a tier 1 social media service; and

has been revoked under section 25; and

(d) such other matters (if any) as the Commissioner considers

relevant.

(6) Before making a recommendation under subsection (1) in relation

to a social media service, the Commissioner must consult the

provider of the service.

(7) Subsections (4), (5) and (6) do not apply to a social media service

if the provider of the service has requested the Commissioner to

make the recommendation concerned.

Large social media service

(8) In determining whether a social media service is a large social

media service, the Commissioner must have regard to:

(a) if the service has accounts for end-users:

(i) the number of accounts that are held by end-users who

are ordinarily resident in Australia; and

(ii) the number of accounts that are held by end-users who

are Australian children; and

(b) such other matters (if any) as the Commissioner considers

relevant.

(9) For the purposes of paragraph (8)(a), the Commissioner may make

such assumptions and estimates as the Commissioner considers

reasonable.

Social media services Part 4

Tier 2 social media services Division 3

Section 32

No. , 2014

Enhancing Online Safety for Children Bill 2014

(10) The Commissioner may publish on the Commissioner's website a

statement that explains the Commissioner's approach to the

administration of subsections (8) and (9).

(11) A statement under subsection (10) is not a legislative instrument.

32 Variation of declaration of tier 2 social media service--change of

name

If:

(a) a declaration is in force under subsection 30(1) in relation to

a social media service; and

(b) the service changes its name;

the Minister may, by legislative instrument, vary the declaration to

reflect the new name of the service.

33 Revocation of declaration of social media service as a tier 2 social

media service

(1) If:

(a) a declaration is in force under subsection 30(1) in relation to

a social media service; and

(b) the service complies with the basic online safety

requirements; and

made; and

(d) if one or more social media service notices were given to the

provider of the service at any time during the preceding 3

months--the provider complied with all, or nearly all, of

those notices; and

(e) the Commissioner has recommended the revocation of the

declaration;

the Minister may, by legislative instrument, revoke the declaration.

(2) The revocation takes effect at the end of the 28-day period that

began at the end of the day on which the instrument was made.

Part 4 Social media services

Division 3 Tier 2 social media services

Section 34

Enhancing Online Safety for Children Bill 2014

No. , 2014

(3) If, during that 28-day period, the provider of the service applies

under subsection 23(1) for the declaration of the service as a tier 1

social media service:

(a) paragraph 23(4)(c) does not apply to the making of a

subsection 23(4) declaration in relation to the service; and

(b) if a subsection 23(4) declaration is made in relation to the

service--the subsection 23(4) declaration takes effect

immediately after the end of that 28-day period.

34 Register of Tier 2 Social Media Services

(1) The Commissioner is to maintain a register, to be known as the

Commissioner includes the names of each tier 2 social media

service.

(2) The Register of Tier 2 Social Media Services is to be maintained

by electronic means.

(3) The Register of Tier 2 Social Media Services is to be made

available for inspection on the Commissioner's website.

(4) The Register of Tier 2 Social Media Services is not a legislative

instrument.

Subdivision B--Social media service notices

35 Social media service notice

(1) If:

(a) material is provided on a tier 2 social media service; and

(b) the material was the subject of a complaint that was made

under the service's complaints scheme; and

(i) 48 hours after the complaint was made; or

(ii) such longer period as the Commissioner allows; and

(d) a complaint has been made to the Commissioner under

section 18 about the material; and

Social media services Part 4

Tier 2 social media services Division 3

Section 36

No. , 2014

Enhancing Online Safety for Children Bill 2014

(e) the Commissioner is satisfied that the material is or was

cyber-bullying material targeted at an Australian child;

the Commissioner may give the provider of the service a written

notice (a social media service notice) requiring the provider to:

(f) remove the material from the service; and

(g) do so within 48 hours after the social media service notice

was given to the provider.

Note 1:

For declaration of a tier 2 social media service, see section 30.

Note 2:

For enforcement, see:

(a) sections 36 and 46 (civil penalty); and

(b) section 47 (enforceable undertakings); and

Notice of refusal to give a social media service notice

(2) If the Commissioner decides to refuse to give a social media

service notice to the provider of a social media service, the

Commissioner must give written notice of the refusal to the person

who made a section 18 complaint about the material concerned.

36 Compliance with social media service notice

A person must comply with a requirement under a social media

service notice to the extent that the person is capable of doing so.

Civil penalty:

100 penalty units.

37 Formal warning

The Commissioner may issue a formal warning if a person

contravenes section 36.

Part 4 Social media services

Division 4 Non-compliant social media services

Section 38

Enhancing Online Safety for Children Bill 2014

No. , 2014

Division 4--Non-compliant social media services

38 Non-compliance with the basic online safety requirements

(1) If the Commissioner is satisfied that a social media service does

not comply with the basic online safety requirements, the

Commissioner may:

(a) prepare a statement to that effect; and

(b) publish the statement on the Commissioner's website.

(2) If:

(a) the Commissioner has prepared a statement under

subsection (1) in relation to a social media service; and

(b) the statement has been published on the Commissioner's

website; and

the basic online safety requirements;

the Commissioner must remove the statement from the

Commissioner's website.

39 Non-compliance with a request for removal of cyber-bullying

material

If the Commissioner is satisfied that the provider of a social media

service has not complied with a request under section 29, the

Commissioner may:

(a) prepare a statement to that effect; and

(b) publish the statement on the Commissioner's website.

40 Non-compliance with a social media service notice

If the Commissioner is satisfied that the provider of a social media

service has not complied with a social media service notice, the

Commissioner may:

(a) prepare a statement to that effect; and

(b) publish the statement on the Commissioner's website.

End-user notices Part 5

Section 41

No. , 2014

Enhancing Online Safety for Children Bill 2014

Part 5--End-user notices

41 Simplified outline of this Part

•

A person who posts cyber-bullying material targeted at an

Australian child may be given a notice (an end-user notice)

requiring the person to do any or all of the following:

(a)

take all reasonable steps to ensure the removal of the

material;

(b)

refrain from posting any cyber-bullying material for

which the child is the target;

(c)

apologise for posting the material.

42 End-user notice

(1) If:

(a) material is, or has been, provided on a social media service or

relevant electronic service; and

(b) a complaint has been made to the Commissioner under

section 18 about the material; and

cyber-bullying material targeted at an Australian child; and

(d) the material was posted on the service by a particular

end-user of the service;

the Commissioner may give the end-user a written notice (an

end-user notice) requiring the end-user to do any or all of the

following:

(e) if the material is provided on the service--to:

(i) take all reasonable steps to ensure the removal of the

material from the service; and

(ii) do so within the period specified in the notice;

(f) in any case--to refrain from posting any cyber-bullying

material for which the child is the target;

(g) in any case--to:

Part 5 End-user notices

Section 43

Enhancing Online Safety for Children Bill 2014

No. , 2014

(i) apologise to the child (or, if the child has become an

adult, to the adult) for posting the material; and

(ii) do so in the manner, and within the period, specified in

the notice.

Transitional

(2) If material was posted on a social media service or relevant

electronic service before the commencement of this section,

paragraph (1)(a) does not apply to the material unless the material

was provided on the service after the commencement of this

section.

43 Compliance with end-user notice

A person must comply with a requirement under an end-user notice

to the extent that the person is capable of doing so.

Note:

For enforcement, see section 48 (injunctions).

44 Formal warning

The Commissioner may issue a formal warning if a person

contravenes section 43.

Enforcement Part 6

Section 45

No. , 2014

Enhancing Online Safety for Children Bill 2014

Part 6--Enforcement

45 Simplified outline of this Part

•

A civil penalty provision in this Act is enforceable under

Part 4 of the Regulatory Powers (Standard Provisions) Act

2014.

•

The Commissioner may accept an enforceable undertaking

under Part 6 of the Regulatory Powers (Standard Provisions)

Act 2014 that relates to a social media service notice.

•

The Commissioner may seek an injunction under Part 7 of the

Regulatory Powers (Standard Provisions) Act 2014 that

relates to:

(a)

a social media service notice; or

(b)

an end-user notice.

46 Civil penalty provision

Enforceable civil penalty provision

(1) A civil penalty provision in this Act is enforceable under Part 4 of

the Regulatory Powers (Standard Provisions) Act 2014.

Note:

Part 4 of the Regulatory Powers (Standard Provisions) Act 2014

allows a civil penalty provision to be enforced by obtaining an order

for a person to pay a pecuniary penalty for the contravention of the

provision.

Authorised applicant

(2) For the purposes of Part 4 of the Regulatory Powers (Standard

Provisions) Act 2014, the Commissioner is an authorised applicant

in relation to a civil penalty provision in this Act.

Part 6 Enforcement

Section 47

Enhancing Online Safety for Children Bill 2014

No. , 2014

Relevant court

(3) For the purposes of Part 4 of the Regulatory Powers (Standard

Provisions) Act 2014, the Federal Circuit Court of Australia is a

relevant court in relation to a civil penalty provision in this Act.

Extension to external Territories etc.

(4) Part 4 of the Regulatory Powers (Standard Provisions) Act 2014,

as it applies in relation to a civil penalty provision in this Act,

extends to:

(a) every external Territory; and

(b) acts, omissions, matters and things outside Australia.

47 Enforceable undertakings

Enforceable provisions

(1) Section 36 of this Act is enforceable under Part 6 of the Regulatory

Powers (Standard Provisions) Act 2014.

Authorised person

(2) The Commissioner is an authorised person in relation to section 36

of this Act for the purposes of Part 6 of the Regulatory Powers

(Standard Provisions) Act 2014.

Relevant court

(3) The Federal Circuit Court of Australia is a relevant court in

relation to section 36 of this Act for the purposes of Part 6 of the

Regulatory Powers (Standard Provisions) Act 2014.

Extension to external Territories etc.

(4) Part 6 of the Regulatory Powers (Standard Provisions) Act 2014,

as it applies in relation to section 36 of this Act, extends to:

(a) every external Territory; and

(b) acts, omissions, matters and things outside Australia.

Enforcement Part 6

Section 48

No. , 2014

Enhancing Online Safety for Children Bill 2014

48 Injunctions

Enforceable provisions

(1) The following provisions are enforceable under Part 7 of the

Regulatory Powers (Standard Provisions) Act 2014:

(a) section 36;

(b) section 43.

Authorised person

(2) The Commissioner is an authorised person in relation to the

provisions mentioned in subsection (1) for the purposes of Part 7 of

the Regulatory Powers (Standard Provisions) Act 2014.

Relevant court

(3) The Federal Circuit Court of Australia is a relevant court in

relation to the provisions mentioned in subsection (1) for the

purposes of Part 7 of the Regulatory Powers (Standard Provisions)

Act 2014.

Extension to external Territories etc.

(4) Part 7 of the Regulatory Powers (Standard Provisions) Act 2014,

as it applies in relation to the provisions mentioned in

subsection (1), extends to:

(a) every external Territory; and

(b) acts, omissions, matters and things outside Australia.

Part 7 Administrative provisions relating to the Commissioner

Division 1 Introduction

Section 49

Enhancing Online Safety for Children Bill 2014

No. , 2014

Part 7--Administrative provisions relating to the

Commissioner

Division 1--Introduction

49 Simplified outline of this Part

•

The Commissioner is to be appointed by the Minister.

•

The Commissioner may delegate his or her functions and

powers.

•

The Commissioner must prepare an annual report.

•

The ACMA must assist the Commissioner.

•

The Minister may give directions to the Commissioner.

Administrative provisions relating to the Commissioner Part 7

Appointment of the Commissioner Division 2

Section 50

No. , 2014

Enhancing Online Safety for Children Bill 2014

Division 2--Appointment of the Commissioner

50 Appointment of the Commissioner

(1) The Commissioner is to be appointed by the Minister by written

instrument.

(2) A person is not eligible for appointment as the Commissioner

unless the Minister is satisfied that the person has:

(a) substantial experience or knowledge; and

(b) significant standing;

in at least one of the following fields:

(d) the operation of the internet industry;

(e) public engagement on issues relating to online safety;

(f) public policy in relation to the communications sector.

(3) The Commissioner holds office on a full-time basis.

51 Period of appointment for the Commissioner

The Commissioner holds office for the period specified in the

instrument of appointment. The period must not exceed 5 years.

Note:

The Commissioner may be reappointed: see the Acts Interpretation

Act 1901.

52 Acting appointments

(1) The Minister may appoint a person to act as the Commissioner:

(a) during a vacancy in the office of the Commissioner (whether

or not an appointment has previously been made to the

office); or

(b) during any period, or during all periods, when the

Commissioner:

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the

office.

Administrative provisions relating to the Commissioner Part 7

Terms and conditions for the Commissioner Division 3

Section 53

No. , 2014

Enhancing Online Safety for Children Bill 2014

Division 3--Terms and conditions for the Commissioner

53 Remuneration and allowances

(1) The Commissioner is to be paid the remuneration that is

determined by the Remuneration Tribunal. If no determination of

that remuneration by the Tribunal is in operation, the

Commissioner is to be paid the remuneration that is prescribed by

the legislative rules.

(2) The Commissioner is to be paid the allowances that are prescribed

by the legislative rules.

(3) This section has effect subject to the Remuneration Tribunal Act

1973.

54 Leave of absence

(1) The Commissioner has the recreation leave entitlements that are

determined by the Remuneration Tribunal.

(2) The Minister may grant the Commissioner leave of absence (other

than recreation leave) on the terms and conditions, as to

remuneration or otherwise, that the Minister determines.

55 Outside employment

The Commissioner must not engage in paid employment outside

the duties of his or her office without the Minister's approval.

56 Disclosure of interests to the Minister

The Commissioner must give written notice to the Minister of all

interests, pecuniary or otherwise, that the Commissioner has or

acquires, and that conflict or could conflict with the proper

performance of the Commissioner's functions.

Part 7 Administrative provisions relating to the Commissioner

Division 3 Terms and conditions for the Commissioner

Section 57

Enhancing Online Safety for Children Bill 2014

No. , 2014

57 Resignation

(1) The Commissioner may resign his or her appointment by giving

the Minister a written resignation.

(2) The resignation takes effect on the day it is received by the

Minister or, if a later day is specified in the resignation, on that

later day.

58 Termination of appointment

(1) The Minister may terminate the appointment of the Commissioner:

(a) for misbehaviour; or

(b) if the Commissioner is unable to perform the duties of his or

her office because of physical or mental incapacity.

(2) The Minister may terminate the appointment of the Commissioner

if:

(a) the Commissioner:

(i) becomes bankrupt; or

(ii) applies to take the benefit of any law for the relief of

bankrupt or insolvent debtors; or

(iii) compounds with his or her creditors; or

(iv) makes an assignment of his or her remuneration for the

benefit of his or her creditors; or

(b) the Commissioner is absent, except on leave of absence, for

14 consecutive days or for 28 days in any 12 months; or

approval, in paid employment outside the duties of his or her

office (see section 55); or

(d) the Commissioner fails, without reasonable excuse, to

comply with section 56.

59 Other terms and conditions

The Commissioner holds office on the terms and conditions (if

any) in relation to matters not covered by this Act that are

determined by the Minister.

Administrative provisions relating to the Commissioner Part 7

Other matters Division 4

Section 60

No. , 2014

Enhancing Online Safety for Children Bill 2014

Division 4--Other matters

60 Supplementary powers

(1) The powers of the Commissioner include, but are not limited to,

the power to enter into contracts.

(2) Any contract entered into by the Commissioner is to be entered

into on behalf of the Commonwealth.

(3) Any real or personal property held by the Commissioner is held for

and on behalf of the Commonwealth.

(4) Any money received by the Commissioner is received for and on

behalf of the Commonwealth.

(5) The Commissioner cannot hold real or personal property, or

money, on trust for a person other than the Commonwealth.

Note:

The Commonwealth may hold real or personal property or money on

trust.

(6) To avoid doubt, a right to sue is taken not to be personal property

for the purposes of subsection (3).

61 Commissioner's liabilities are Commonwealth liabilities

(1) Any financial liabilities of the Commissioner are taken to be

liabilities of the Commonwealth.

(2) For the purposes of this section, financial liability means a liability

to pay a person an amount, where the amount, or the method for

working out the amount, has been determined.

62 Commissioner has privileges and immunities of the Crown

The Commissioner has the privileges and immunities of the Crown

in right of the Commonwealth.

Part 7 Administrative provisions relating to the Commissioner

Division 4 Other matters

Section 63

Enhancing Online Safety for Children Bill 2014

No. , 2014

63 Delegation by the Commissioner to a member of the staff of the

ACMA etc.

(1) The Commissioner may, by writing, delegate any or all of the

Commissioner's functions or powers to:

(a) a member of the staff of the ACMA; or

(b) a person whose services are made available to the ACMA

under paragraph 55(1)(a) of the Australian Communications

and Media Authority Act 2005;

if the member or person is:

(d) an acting SES employee; or

(e) an APS employee who holds or performs the duties of:

(i) an Executive Level 1 or 2 position; or

(ii) an equivalent position; or

(f) an APS employee who holds or performs the duties of:

(i) an APS 6 position; or

(ii) an equivalent position.

Note:

The expressions SES employee and acting SES employee are defined

in the Acts Interpretation Act 1901.

(2) A delegate must comply with any written directions of the

Commissioner.

(3) Subsection (1) does not apply to a power to make, vary or revoke a

legislative instrument.

64 Delegation by the Commissioner to a body corporate

(1) The Commissioner may, by writing, delegate any or all of the

Commissioner's functions or powers under:

(a) Part 3; or

(b) Part 4 (other than section 35 or 37);

to a body corporate that is:

(d) a company that is registered under Part 2A.2 of the

Corporations Act 2001; and

Administrative provisions relating to the Commissioner Part 7

Other matters Division 4

Section 65

No. , 2014

Enhancing Online Safety for Children Bill 2014

(e) a company limited by guarantee.

(2) A delegate must comply with any written directions of the

Commissioner.

Information

(3) If, under subsection (1), the Commissioner delegates one or more

functions or powers to a body corporate:

(a) the body corporate may give the Commissioner information

and documents that are relevant to the performance of the

Commissioner's functions, or the exercise of the

Commissioner's powers, under this Act; and

(b) the Commissioner may give the body corporate information

and documents that are relevant to the performance of the

functions, or the exercise of the powers, delegated to the

body corporate.

Operation of other laws of the Commonwealth

(4) The legislative rules may provide that if, under subsection (1), the

Commissioner delegates one or more functions or powers to a body

corporate, the body corporate is taken, for the purposes of a

specified law of the Commonwealth (other than this Act) to be a

body corporate established for a public purpose by this Act.

Funding agreement

(5) If, under subsection (1), the Commissioner delegates one or more

functions or powers to a body corporate, the Minister may, on

behalf of the Commonwealth, enter into an agreement with the

body corporate for the payment to the body corporate of amounts

in respect of the performance of the functions, and the exercise of

the powers, delegated to the body corporate.

Part 7 Administrative provisions relating to the Commissioner

Division 4 Other matters

Section 65

Enhancing Online Safety for Children Bill 2014

No. , 2014

65 Sub-delegation by body corporate

(1) If, under subsection 64(1), the Commissioner delegates a function

or power to a body corporate, the body corporate may, by writing,

sub-delegate the function or power to a person who:

(a) is a director or employee of the body corporate; and

(b) satisfies the conditions set out in the legislative rules.

(2) A sub-delegate must comply with any written directions of:

(a) the body corporate; or

(b) the Commissioner.

(3) Sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901

apply in relation to a sub-delegation in a corresponding way to the

way in which they apply to a delegation.

66 Annual report

(1) The Commissioner must, as soon as practicable after the end of

each financial year, prepare and give to the Minister, for

presentation to the Parliament, a report on the operations of the

Commissioner during that year.

Note:

See also section 34C of the Acts Interpretation Act 1901, which

contains extra rules about annual reports.

(2) If, under subsection 64(1), the Commissioner delegates one or

more functions or powers to a body corporate, a report under

subsection (1) of this section for a financial year must include a

report on the operations of the body corporate under this Act

during the year.

67 Assistance to the Commissioner

(1) The ACMA must:

(a) assist the Commissioner to perform his or her functions and

exercise his or her powers; and

(b) do so to such extent as the Commissioner reasonably

requires.

(2) The assistance may include the following:

Administrative provisions relating to the Commissioner Part 7

Other matters Division 4

Section 68

No. , 2014

Enhancing Online Safety for Children Bill 2014

(a) the provision of advice;

(b) the making available of resources and facilities.

(3) The ACMA must:

(a) make available members of the staff of the ACMA to assist

the Commissioner to perform his or her functions and

exercise his or her powers; and

(b) do so to such extent as the Commissioner reasonably

requires.

(4) The Minister may, by legislative instrument, give directions to the

ACMA in relation to the performance of its functions, or the

exercise of its powers, under this section.

Note 1:

For variation and revocation, see subsection 33(3) of the Acts

Interpretation Act 1901.

Note 2:

Section 42 (disallowance) and Part 6 (sunsetting) of the Legislative

Instruments Act 2003 do not apply to the direction (see sections 44

and 54 of that Act).

(5) The ACMA must comply with a direction under subsection (4).

(6) For the purposes of this section, if a person is an officer or

employee whose services are made available to the ACMA under

paragraph 55(1)(a) of the Australian Communications and Media

Authority Act 2005, the person is taken to be a member of the staff

of the ACMA.

68 Commissioner not subject to direction by the ACMA

To avoid doubt, the Commissioner is not subject to direction by:

(a) the ACMA; or

(b) a member or associate member of the ACMA; or

in relation to the performance of a function, or the exercise of a

power, by the Commissioner.

Part 7 Administrative provisions relating to the Commissioner

Division 4 Other matters

Section 69

Enhancing Online Safety for Children Bill 2014

No. , 2014

69 Consultants

(1) The Commissioner may, on behalf of the Commonwealth, engage

persons having suitable qualifications and experience as

consultants to the Commissioner.

(2) The consultants are to be engaged on the terms and conditions that

the Commissioner determines in writing.

70 Minister may give directions to the Commissioner

(1) The Minister may, by legislative instrument, give directions to the

Commissioner about the performance of the Commissioner's

functions or the exercise of the Commissioner's powers.

Note 1:

For variation and revocation, see the Acts Interpretation Act 1901.

Note 2:

Section 42 (disallowance) and Part 6 (sunsetting) of the Legislative

Instruments Act 2003 do not apply to the direction (see sections 44

and 54 of that Act).

(2) A direction under subsection (1) must be of a general nature only.

(3) Subsection (2) of this section does not apply to the Commissioner's

powers under subsection 64(1).

Note:

Subsection 64(1) deals with delegation to a body corporate.

(4) The Commissioner must comply with a direction under

subsection (1).

Children's Online Safety Special Account Part 8

Section 71

No. , 2014

Enhancing Online Safety for Children Bill 2014

Part 8--Children's Online Safety Special Account

71 Simplified outline of this Part

•

The Children's Online Safety Special Account is established.

72 Children's Online Safety Special Account

(1) The Children's Online Safety Special Account is established by

this section.

(2) The Account is a special account for the purposes of the Public

Governance, Performance and Accountability Act 2013.

(3) The Account is to be administered by the ACMA.

(4) An amount must not be debited from the Account without the

written approval of the Commissioner.

73 Credits to the Account

Determination

(1) The Minister may, by writing, determine that a specified amount is

to be:

(a) debited against the appropriation for the ACMA departmental

item in a specified Appropriation Act; and

(b) credited to the Children's Online Safety Special Account.

(2) A determination under subsection (1) is a legislative instrument,

but section 42 (disallowance) of the Legislative Instruments Act

2003 does not apply to the determination.

ACMA departmental item

(3) For the purposes of the application of this section to an

Appropriation Act, ACMA departmental item means a

Part 8 Children's Online Safety Special Account

Section 74

Enhancing Online Safety for Children Bill 2014

No. , 2014

departmental item (within the meaning of that Act) that relates to

the ACMA.

74 Purposes of the Account

The purposes of the Children's Online Safety Special Account are

as follows:

(a) to enhance online safety for children;

(b) to make grants under paragraph 15(1)(g);

(i) remuneration, and other employment-related costs and

expenses, in respect of APS employees whose duties

relate to the performance of the Commissioner's

functions or the exercise of the Commissioner's powers;

and

(ii) any other costs, expenses and other obligations incurred

by the Commonwealth in connection with the

performance of the Commissioner's functions or the

exercise of the Commissioner's powers;

(d) to pay any costs, expenses and other obligations incurred by

the Commonwealth under an agreement entered into under

subsection 64(5).

Note:

See section 80 of the Public Governance, Performance and

Accountability Act 2013 (which deals with special accounts).

Disclosure of information Part 9

Section 75

No. , 2014

Enhancing Online Safety for Children Bill 2014

Part 9--Disclosure of information

75 Simplified outline of this Part

•

The Commissioner may disclose information in certain

circumstances.

Note:

See also section 92 (referral of matters to law enforcement agencies).

76 Scope

This Part applies to information that was obtained by the

Commissioner as a result of the performance of a function, or the

exercise of a power, conferred on the Commissioner by or under:

(a) this Act; or

(b) the Broadcasting Services Act 1992.

77 Disclosure to Minister

The Commissioner may disclose information to the Minister.

78 Disclosure to APS employees for advising the Minister

For the purpose of advising the Minister, the Commissioner may

disclose information to:

(a) the Secretary of the Department; or

(b) an APS employee in the Department who is authorised, in

writing, by the Secretary of the Department for the purposes

of this section.

79 Disclosure to Royal Commissions

(1) The Commissioner may disclose information to a Royal

Commission (within the meaning of the Royal Commissions Act

1902).

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(2) The Commissioner may, by writing, impose conditions to be

complied with in relation to information disclosed under

subsection (1).

(3) An instrument made under subsection (2) that imposes conditions

relating to one particular disclosure identified in the instrument is

not a legislative instrument.

(4) Otherwise, an instrument made under subsection (2) is a legislative

instrument.

80 Disclosure to certain authorities

(1) The Commissioner may disclose information to any of the

following authorities if the Commissioner is satisfied that the

information will enable or assist the authority to perform or

exercise any of the authority's functions or powers:

(a) the ACMA;

(b) the National Children's Commissioner;

administering the Classification (Publications, Films and

Computer Games) Act 1995 or an APS employee in that

Department whose duties relate to that Act;

(d) the Australian Federal Police;

(e) the Director of Public Prosecutions;

(f) an authority of a State or Territory responsible for enforcing

one or more laws of the State or Territory;

(g) an authority of a foreign country responsible for regulating

matters relating to the capacity of children to use social

media services and electronic services in a safe manner.

(2) The Commissioner may, by writing, impose conditions to be

complied with in relation to information disclosed under

subsection (1).

(3) An instrument made under subsection (2) that imposes conditions

relating to one particular disclosure identified in the instrument is

not a legislative instrument.

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(4) Otherwise, an instrument made under subsection (2) is a legislative

instrument.

81 Disclosure to teachers or school principals

(1) The Commissioner may disclose information to a teacher or school

principal if the Commissioner is satisfied that the information will

assist in the resolution of a complaint made under section 18.

(2) The Commissioner may, by writing, impose conditions to be

complied with in relation to information disclosed under

subsection (1).

(3) An instrument made under subsection (2) that imposes conditions

relating to one particular disclosure identified in the instrument is

not a legislative instrument.

(4) Otherwise, an instrument made under subsection (2) is a legislative

instrument.

82 Disclosure to parents or guardians

(1) The Commissioner may 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 section 18.

(2) The Commissioner may, by writing, impose conditions to be

complied with in relation to information disclosed under

subsection (1).

(3) An instrument made under subsection (2) that imposes conditions

relating to one particular disclosure identified in the instrument is

not a legislative instrument.

(4) Otherwise, an instrument made under subsection (2) is a legislative

instrument.

83 Disclosure with consent

The Commissioner may disclose information that relates to the

affairs of a person if:

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(a) the person has consented to the disclosure; and

(b) the disclosure is in accordance with that consent.

84 Disclosure of publicly available information

The Commissioner may disclose information if it is already

publicly available.

85 Disclosure of summaries and statistics

The Commissioner may disclose:

(a) summaries of de-identified information; and

(b) statistics derived from de-identified information.

86 Relationship with Part 13 of the Telecommunications Act 1997

This Part does not authorise a disclosure of information that is

prohibited by Part 13 of the Telecommunications Act 1997.

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Part 10--Miscellaneous

87 Simplified outline of this Part

•

This Part deals with miscellaneous matters, such as review of

decisions and legislative rules.

88 Review of decisions

Declaration of tier 1 social media service

(1) An application may be made to the Administrative Appeals

Tribunal for a review of any of the following decisions made by

the Commissioner:

(a) a decision under subsection 23(5) to refuse to make a

declaration in relation to a social media service;

(b) a decision under section 25 to revoke a declaration that

relates to a social media service.

(2) An application under subsection (1) may only be made by the

provider of the social media service concerned.

Social media service notice

(3) An application may be made to the Administrative Appeals

Tribunal for a review of a decision of the Commissioner under

section 35 to give a social media service notice to the provider of a

social media service.

(4) An application under subsection (3) may only be made by:

(a) the provider of the social media service; or

(b) the end-user who posted the material the subject of the

notice.

(5) An application may be made to the Administrative Appeals

Tribunal for a review of a decision of the Commissioner to refuse

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to give the provider of a social media service a social media service

notice that relates to material provided on the service.

(6) An application under subsection (5) may only be made:

(a) by a person who made a section 18 complaint about the

material provided on the service; or

(b) by, or with the consent of, the person who was the target of

the material provided on the service.

End-user notice

(7) An application may be made to the Administrative Appeals

Tribunal for a review of a decision of the Commissioner under

section 42 to give an end-user notice.

89 Protection from civil proceedings

(1) Civil proceedings do not lie against a person in respect of loss,

damage or injury of any kind suffered by another person because

of any of the following acts done in good faith:

(a) the making of a complaint under section 18;

(b) the making of a statement to, or the giving of a document or

information to, the Commissioner in connection with an

investigation under section 19.

(2) Civil proceedings do not lie against a person in respect of anything

done by the person in compliance with:

(a) a request under section 29; or

(b) a social media service notice; or

90 Liability for damages

None of the following:

(a) the Commissioner;

(b) a delegate of the Commissioner;

of the Commissioner;

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is liable to an action or other proceeding for damages for, or in

relation to, an act or matter in good faith done or omitted to be

done:

(d) in the performance or purported performance of any function;

(e) in the exercise or purported exercise of any power;

conferred on the Commissioner by or under this Act or the

Broadcasting Services Act 1992.

91 Protection from criminal proceedings--Commissioner etc.

(1) For the purposes of this section, each of the following is a

protected person:

(a) the Commissioner;

(b) a member of the staff of the ACMA;

the ACMA under paragraph 55(1)(a) of the Australian

Communications and Media Authority Act 2005;

(d) a consultant engaged under section 69;

(e) a body corporate that is a delegate of the Commissioner;

(f) a director or employee of a body corporate that is a delegate

of the Commissioner.

(2) Criminal proceedings do not lie against a protected person for or in

relation to:

(a) the collection of material; or

(b) the possession of material; or

(d) the delivery of material; or

(e) the copying of material; or

(f) the doing of any other thing in relation to material;

in connection with the exercise of a power, or the performance of a

function, conferred on the Commissioner by or under this Act.

(3) For the purposes of this section, possession includes have in

custody or control.

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92 Referral of matters to law enforcement agencies

(1) If:

(a) in the performance of a function, or the exercise of a power,

conferred on the Commissioner, the Commissioner becomes

aware of particular material provided on a social media

service or relevant electronic service; and

(b) the Commissioner is satisfied that the material is of a

sufficiently serious nature to warrant referral to a law

enforcement agency; and

clause 69 of Schedule 7, to the Broadcasting Services Act

1992;

the Commissioner may notify the material to:

(d) a member of an Australian police force; or

(e) if there is an arrangement between:

(i) the Commissioner; and

(ii) the chief (however described) of an Australian police

force under which the Commissioner is authorised to

notify the material to another person or body;

that other person or body.

Referral to law enforcement agency

(2) The manner in which material may be notified under

paragraph (1)(d) to a member of an Australian police force

includes (but is not limited to) a manner ascertained in accordance

with an arrangement between:

(a) the Commissioner; and

(b) the chief (however described) of the police force concerned.

(3) If a member of an Australian police force is notified of particular

material under this section, the member may notify the material to

a member of another law enforcement agency.

(4) This section does not, by implication, limit the powers of the

Commissioner to refer other matters to a member of an Australian

police force.

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93 Deferral of action in order to avoid prejudicing a criminal

investigation

If:

(a) in the performance of a function, or the exercise of a power,

conferred on the Commissioner, the Commissioner becomes

aware of particular material provided on a social media

service or relevant electronic service; and

(b) apart from this section, the Commissioner would be required

to take action under this Act in relation to the material; and

Commissioner 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 Commissioner may defer taking that action until the end of that

period.

94 Copies of material

(1) The Commissioner may make one or more copies of material for

the purposes of an investigation under section 19.

(2) The Commissioner does not infringe copyright if the

Commissioner does anything authorised by subsection (1).

95 Compensation for acquisition of property

(1) If the operation of this Act or the legislative rules would result in

an acquisition of property (within the meaning of

paragraph 51(xxxi) of the Constitution) from a person otherwise

than on just terms (within the meaning of that paragraph), the

Commonwealth is liable to pay a reasonable amount of

compensation to the person.

(2) If the Commonwealth and the person do not agree on the amount

of the compensation, the person may institute proceedings in a

court of competent jurisdiction for the recovery from the

Commonwealth of such reasonable amount of compensation as the

court determines.

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Section 96

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96 Service of notices by electronic means

Paragraphs 9(1)(d) and (2)(d) of the Electronic Transactions Act

1999 do not apply to a notice under:

(a) this Act; or

(b) the Regulatory Powers (Standard Provisions) Act 2014, so

far as that Act relates to this Act.

Note:

Paragraphs 9(1)(d) and (2)(d) of the Electronic Transactions Act 1999

deal with the consent of the recipient of information to the information

being given by way of electronic communication.

97 Service of notices on contact person etc.

Scope

(1) This section applies to:

(a) a summons or process in any proceedings under, or

connected with, this Act; or

(b) a summons or process in any proceedings under, or

connected with, the Regulatory Powers (Standard

Provisions) Act 2014, so far as that Act relates to this Act; or

(d) a notice under the Regulatory Powers (Standard Provisions)

Act 2014, so far as that Act relates to this Act.

Service of summons, process or notice on contact person

(2) If:

(a) the summons, process or notice, as the case may be, is

required to be served on, or given to, the provider of a social

media service; and

(b) there is an individual who is:

(i) an employee or agent of the provider; and

(ii) designated as the service's contact person for the

purposes of this Act; and

the Commissioner;

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the summons, process or notice, as the case may be, is taken to

have been served on, or given to, the provider if it is served on, or

given to, the contact person.

Service of summons, process or notice on agent

(3) If:

(a) the summons, process or notice, as the case may be, is

required to be served on, or given to, a body corporate

incorporated outside Australia; and

(b) the body corporate does not have a registered office or a

principal office in Australia; and

the summons, process or notice, as the case may be, is taken to

have been served on, or given to, the body corporate if it is served

on, or given to, the agent.

Other matters

(4) Subsections (2) and (3) have effect in addition to section 28A of

the Acts Interpretation Act 1901.

Note:

Section 28A of the Acts Interpretation Act 1901 deals with the service

of documents.

98 This Act does not limit Schedule 5 or 7 to the Broadcasting

Services Act 1992

This Act does not limit the operation of Schedule 5 or 7 to the

Broadcasting Services Act 1992.

99 This Act does not limit the Telecommunications Act 1997

This Act does not limit the operation of the Telecommunications

Act 1997.

100 Implied freedom of political communication

(1) This Act does not apply to the extent (if any) that it would infringe

any constitutional doctrine of implied freedom of political

communication.

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(2) Subsection (1) does not limit the application of section 15A of the

Acts Interpretation Act 1901 to this Act.

101 Concurrent operation of State and Territory laws

It is the intention of the Parliament that this Act is not to apply to

the exclusion of a law of a State or Territory to the extent to which

that law is capable of operating concurrently with this Act.

102 This Act not to affect performance of State or Territory

functions

A power conferred by this Act 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.

103 Revocation or variation of instruments

A provision of this Act that expressly authorises the revocation or

variation of an instrument does not, by implication, limit the

application of subsection 33(3) of the Acts Interpretation Act 1901

in relation to other instruments under this Act.

104 Terms of use of a social media service

(1) For the purposes of this Act, if:

(a) a social media service's terms of use contains a provision that

prohibits end-users from posting on the service one or more

kinds of material; and

(b) that provision does not expressly prohibit end-users from

posting on the service cyber-bullying material; and

material, the material would breach that provision;

that provision may reasonably be regarded as the equivalent of a

provision that prohibits end-users from posting on the service

cyber-bullying material.

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(2) For the purposes of this section, cyber-bullying material has its

ordinary meaning.

105 Provider of social media service or relevant electronic service

(1) For the purposes of this Act, a person does not provide a social

media service or relevant electronic service merely because the

person supplies a carriage service that enables material to be

accessed or delivered.

(2) For the purposes of this Act, a person does not provide a social

media service or relevant electronic service merely because the

person provides a billing service, or a fee collection service, in

relation to a social media service or relevant electronic service.

106 Extended meaning of use

Unless the contrary intention appears, a reference in this Act to the

use of a thing is a reference to the use of the thing either:

(a) in isolation; or

(b) in conjunction with one or more other things.

107 Review of this Act etc.

(1) Within 3 years after the commencement of this section, the

Minister must cause to be conducted a review of the following

matters:

(a) the operation of this Act and the legislative rules;

(b) whether this Act or the legislative rules should be amended;

(2) The Minister must cause to be prepared a report of a review under

subsection (1).

(3) The Minister must cause copies of a report to be tabled in each

House of the Parliament within 15 sitting days of that House after

the completion of the report.

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Section 108

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108 Legislative rules

(1) The Minister may, by legislative instrument (and subject to

subsection (2)), make rules (legislative rules) prescribing matters:

(a) required or permitted by this Act to be prescribed by the

legislative rules; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Act.

(2) To avoid doubt, the legislative rules may not do the following:

(a) create an offence or civil penalty;

(b) provide powers of:

(i) arrest or detention; or

(ii) entry, search or seizure;

(d) set an amount to be appropriated from the Consolidated

Revenue Fund under an appropriation in this Act;

(e) amend this Act.

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ENHANCING ONLINE SAFETY FOR CHILDREN BILL 2014