Commonwealth of Australia Bills Commonwealth of Australia Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
2019-2020-2021
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Online Safety Bill 2021
No. , 2021
(Communications, Urban Infrastructure, Cities and the Arts)
A Bill for an Act relating to online safety for
Australians, and for other purposes
No. , 2021
Online Safety Bill 2021
i
Contents
Part 1--Preliminary
1
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Objects of this Act ............................................................................. 2
4
Simplified outline of this Act ............................................................ 2
5
Definitions ......................................................................................... 5
6
Cyber-bullying material targeted at an Australian child .................. 14
7
Cyber-abuse material targeted at an Australian adult ...................... 15
8
Determining whether material is offensive ...................................... 16
9
Material that depicts abhorrent violent conduct ............................... 17
10
When material is provided on a social media service,
relevant electronic service or designated internet service ................ 17
11
When material is posted by an end-user of a social media
service, relevant electronic service or designated internet
service.............................................................................................. 17
12
When material is removed from a social media service,
relevant electronic service or designated internet service ................ 17
13
Social media service ........................................................................ 17
13A
Relevant electronic service .............................................................. 18
14
Designated internet service .............................................................. 19
15
Intimate image ................................................................................. 20
16
Non-consensual intimate image of a person .................................... 21
17
Hosting service ................................................................................ 22
18
On-demand program service............................................................ 22
19
Internet service providers ................................................................ 23
20
Supply of internet carriage service to the public .............................. 23
21
Consent ............................................................................................ 24
22
Crown to be bound .......................................................................... 24
23
Application of this Act .................................................................... 25
24
Convention on the Rights of the Child ............................................ 25
Part 2--eSafety Commissioner
26
25
Simplified outline of this Part .......................................................... 26
26
eSafety Commissioner ..................................................................... 26
27
Functions of the Commissioner ....................................................... 26
28
Powers of the Commissioner ........................................................... 28
Part 3--Complaints, objections and investigations
29
Division 1--Introduction
29
ii
Online Safety Bill 2021
No. , 2021
29
Simplified outline of this Part .......................................................... 29
Division 2--Complaints about cyber-bullying material targeted
at an Australian child
30
30
Complaints about cyber-bullying material ....................................... 30
31
Investigation of complaints ............................................................. 32
Division 3--Complaints about, and objections to, intimate
images
33
32
Complaints ...................................................................................... 33
33
Objection notice .............................................................................. 34
34
Investigation of complaints ............................................................. 36
35
Commissioner's response to objection notices ................................ 36
Division 4--Complaints about cyber-abuse material targeted at
an Australian adult
37
36
Complaints about cyber-abuse material ........................................... 37
37
Investigation of complaints ............................................................. 38
Division 5--Complaints relating to the online content scheme
40
38
Complaints about class 1 material or class 2 material ..................... 40
39
Complaints relating to breach of a service provider rule etc. ........... 40
40
Complaints relating to breach of an industry code etc. .................... 41
41
Residency etc. of complainant ......................................................... 41
42
Commissioner may investigate matters ........................................... 41
43
Commissioner may refuse to investigate certain matters ................. 43
Part 4--Basic online safety expectations
44
Division 1--Introduction
44
44
Simplified outline of this Part .......................................................... 44
Division 2--Basic online safety expectations
45
45
Basic online safety expectations ...................................................... 45
46
Core expectations ............................................................................ 45
47
Consultation..................................................................................... 47
48
Service provider notifications .......................................................... 48
Division 3--Reporting
50
Subdivision A--Periodic reporting about compliance with basic
online safety expectations
50
49
Periodic reporting notice ................................................................. 50
50
Compliance with notice ................................................................... 51
51
Formal warning ............................................................................... 52
52
Periodic reporting determination ..................................................... 52
No. , 2021
Online Safety Bill 2021
iii
53
Compliance with determination ....................................................... 53
54
Formal warning ............................................................................... 53
55
Service provider notifications .......................................................... 53
Subdivision B--Non-periodic reporting about compliance with
basic online safety expectations
54
56
Non-periodic reporting notice.......................................................... 54
57
Compliance with notice ................................................................... 56
58
Formal warning ............................................................................... 56
59
Non-periodic reporting determination ............................................. 56
60
Compliance with determination ....................................................... 57
61
Formal warning ............................................................................... 57
62
Service provider notifications .......................................................... 57
Subdivision C--Self-incrimination
58
63
Self-incrimination ............................................................................ 58
Part 5--Cyber-bullying material targeted at an Australian
child
60
64
Simplified outline of this Part .......................................................... 60
65
Removal notice given to the provider of a social media
service, relevant electronic service or designated internet
service.............................................................................................. 60
66
Removal notice given to a hosting service provider ........................ 61
67
Compliance with removal notice ..................................................... 62
68
Formal warning ............................................................................... 63
70
End-user notice ................................................................................ 63
71
Compliance with end-user notice .................................................... 64
72
Formal warning ............................................................................... 64
73
Service provider notifications .......................................................... 64
Part 6--Non-consensual sharing of intimate images
66
Division 1--Introduction
66
74
Simplified outline of this Part .......................................................... 66
Division 2--Intimate images must not be posted without consent
etc.
67
75
Posting an intimate image ................................................................ 67
76
Formal warning ............................................................................... 68
Division 3--Removal notices
69
77
Removal notice given to the provider of a social media
service, relevant electronic service or designated internet
service.............................................................................................. 69
iv
Online Safety Bill 2021
No. , 2021
78
Removal notice given to an end-user ............................................... 70
79
Removal notice given to a hosting service provider ........................ 71
80
Compliance with removal notice ..................................................... 72
81
Formal warning ............................................................................... 72
Division 4--Miscellaneous
73
83
Remedial direction........................................................................... 73
84
Formal warning ............................................................................... 73
85
Service provider notifications .......................................................... 73
86
Exempt provision of an intimate image ........................................... 74
Part 7--Cyber-abuse material targeted at an Australian adult
77
87
Simplified outline of this Part .......................................................... 77
88
Removal notice given to the provider of a social media
service, relevant electronic service or designated internet
service.............................................................................................. 77
89
Removal notice given to an end-user ............................................... 78
90
Removal notice given to a hosting service provider ........................ 79
91
Compliance with removal notice ..................................................... 80
92
Formal warning ............................................................................... 80
93
Service provider notifications .......................................................... 80
Part 8--Material that depicts abhorrent violent conduct
82
Division 1--Introduction
82
94
Simplified outline of this Part .......................................................... 82
Division 2--Blocking requests
83
95
Blocking request .............................................................................. 83
96
Duration of blocking request ........................................................... 84
97
Revocation of blocking request ....................................................... 84
98
Notification in relation to domain names and URLs ....................... 85
Division 3--Blocking notices
86
99
Blocking notice ................................................................................ 86
100
Duration of blocking notice ............................................................. 87
101
Revocation of blocking notice ......................................................... 87
102
Notification in relation to domain names and URLs ....................... 88
103
Compliance with blocking notice .................................................... 88
Division 4--Exempt material
89
104
Exempt material .............................................................................. 89
Part 9--Online content scheme
91
Division 1--Introduction
91
No. , 2021
Online Safety Bill 2021
v
105
Simplified outline of this Part .......................................................... 91
106
Class 1 material ............................................................................... 91
107
Class 2 material ............................................................................... 93
108
Restricted access system .................................................................. 96
Division 2--Removal notices relating to class 1 material
98
109
Removal notice given to the provider of a social media
service, relevant electronic service or designated internet
service.............................................................................................. 98
110
Removal notice given to a hosting service provider ........................ 98
111
Compliance with removal notice ..................................................... 99
112
Formal warning ............................................................................... 99
113
Revocation of removal notice .......................................................... 99
113A
Service provider notifications ........................................................ 100
Division 3--Removal notices relating to class 2 material
101
114
Removal notice given to the provider of a social media
service, relevant electronic service or designated internet
service............................................................................................ 101
115
Removal notice given to a hosting service provider ...................... 101
116
Compliance with removal notice ................................................... 102
117
Formal warning ............................................................................. 102
118
Revocation of removal notice ........................................................ 103
118A
Service provider notifications ........................................................ 103
Division 4--Remedial notices relating to class 2 material
104
119
Remedial notice given to the provider of a social media
service, relevant electronic service or designated internet
service............................................................................................ 104
120
Remedial notice given to a hosting service provider ..................... 105
121
Compliance with remedial notice .................................................. 105
122
Formal warning ............................................................................. 106
123
Revocation of remedial notice ....................................................... 106
123A
Service provider notifications ........................................................ 106
Division 5--Link deletion notices
108
124
Link deletion notice ....................................................................... 108
125
Compliance with link deletion notice ............................................ 109
126
Formal warning ............................................................................. 109
127
Revocation of link deletion notice ................................................. 109
Division 6--App removal notices
110
128
App removal notice ....................................................................... 110
129
Compliance with app removal notice ............................................ 111
130
Formal warning ............................................................................. 111
vi
Online Safety Bill 2021
No. , 2021
131
Revocation of app removal notice ................................................. 111
Division 7--Industry codes and industry standards
112
Subdivision A--Interpretation
112
132
Industry codes................................................................................ 112
133
Industry standards .......................................................................... 112
134
Online activity ............................................................................... 112
135
Sections of the online industry ...................................................... 113
136
Participants in a section of the online industry .............................. 114
Subdivision B--General principles relating to industry codes and
industry standards
114
137
Statement of regulatory policy ....................................................... 114
138
Examples of matters that may be dealt with by industry
codes and industry standards ......................................................... 115
139
Escalation of complaints ................................................................ 118
Subdivision C--Industry codes
119
140
Registration of industry codes ....................................................... 119
141
Commissioner may request codes.................................................. 120
142
Replacement of industry codes ...................................................... 121
143
Compliance with industry codes .................................................... 121
144
Formal warnings--breach of industry codes ................................. 122
Subdivision D--Industry standards
122
145
Commissioner may determine an industry standard ...................... 122
146
Compliance with industry standards .............................................. 122
147
Formal warnings--breach of industry standards ........................... 123
148
Public consultation on industry standards ...................................... 123
Subdivision E--Register of industry codes and industry standards
124
149
Commissioner to maintain Register of industry codes and
industry standards .......................................................................... 124
Subdivision F--Miscellaneous
124
150
Industry standards prevail over inconsistent industry codes .......... 124
Division 8--Service provider determinations
125
151
Service provider determinations .................................................... 125
152
Exemptions from service provider determinations ........................ 126
153
Compliance with service provider rules ........................................ 126
154
Remedial directions--breach of service provider rules ................. 127
155
Formal warnings--breach of service provider rules ...................... 127
Division 9--Federal Court orders
128
156
Federal Court may order a person to cease providing a social
media service ................................................................................. 128
No. , 2021
Online Safety Bill 2021
vii
157
Federal Court may order a person to cease providing a
relevant electronic service ............................................................. 128
158
Federal Court may order a person to cease providing a
designated internet service ............................................................. 129
159
Federal Court may order a person to cease supplying an
internet carriage service ................................................................. 130
Division 10--Commissioner may obtain advice from the
Classification Board
131
160
Commissioner may obtain advice from the Classification
Board ............................................................................................. 131
Part 10--Enforcement
133
161
Simplified outline of this Part ........................................................ 133
162
Civil penalty provision .................................................................. 133
163
Infringement notices ...................................................................... 134
164
Enforceable undertakings .............................................................. 135
165
Injunctions ..................................................................................... 137
Part 11--Administrative provisions relating to the
Commissioner
139
Division 1--Introduction
139
166
Simplified outline of this Part ........................................................ 139
Division 2--Appointment of the Commissioner
140
167
Appointment of the Commissioner ................................................ 140
168
Period of appointment for the Commissioner ................................ 140
169
Acting appointments ...................................................................... 140
170
Application of finance law ............................................................ 141
Division 3--Terms and conditions for the Commissioner
142
171
Remuneration and allowances ....................................................... 142
172
Leave of absence ........................................................................... 142
173
Outside employment ...................................................................... 142
174
Disclosure of interests to the Minister ........................................... 142
175
Resignation .................................................................................... 143
176
Termination of appointment .......................................................... 143
177
Other terms and conditions ............................................................ 144
Division 4--Other matters
145
178
Supplementary powers .................................................................. 145
179
Commissioner's liabilities are Commonwealth liabilities ............. 145
180
Commissioner has privileges and immunities of the Crown .......... 145
viii
Online Safety Bill 2021
No. , 2021
181
Delegation by the Commissioner to a member of the staff of
the ACMA etc. .............................................................................. 146
182
Delegation by the Commissioner to a contractor engaged by
the Commissioner .......................................................................... 146
183
Annual report ................................................................................. 148
184
Assistance to the Commissioner .................................................... 148
185
Contractors engaged by the Commissioner ................................... 149
186
Commissioner not subject to direction by the ACMA etc. ............ 149
187
Consultants .................................................................................... 150
188
Minister may give directions to the Commissioner ....................... 150
Part 12--Online Safety Special Account
151
189
Simplified outline of this Part ........................................................ 151
190
Online Safety Special Account ...................................................... 151
191
Credits to the Account ................................................................... 151
192
Purposes of the Account ................................................................ 152
Part 13--Information-gathering powers
153
193
Simplified outline of this Part ........................................................ 153
194
Commissioner may obtain end-user identity information or
contact details ................................................................................ 153
195
Compliance with notice ................................................................. 154
196
Self-incrimination .......................................................................... 154
Part 14--Investigative powers
156
197
Simplified outline of this Part ........................................................ 156
198
Application of this Part .................................................................. 156
199
Notice requiring appearance for examination ................................ 156
200
Examination on oath or affirmation ............................................... 156
201
Examination to take place in private .............................................. 157
202
Record to be made of examination ................................................ 157
203
Production of documents for inspection ........................................ 157
204
Protection of persons giving evidence ........................................... 158
205
Non-compliance with requirement to give evidence ..................... 158
Part 15--Disclosure of information
160
206
Simplified outline of this Part ........................................................ 160
207
Scope ............................................................................................. 160
208
Disclosure to Minister ................................................................... 160
209
Disclosure to Secretary, or APS employees, for advising the
Minister ......................................................................................... 160
210
Disclosure to a member of the staff of the ACMA etc................... 160
211
Disclosure to Royal Commissions ................................................. 161
No. , 2021
Online Safety Bill 2021
ix
212
Disclosure to certain authorities .................................................... 161
213
Disclosure to teachers or school principals .................................... 162
214
Disclosure to parents or guardians ................................................. 163
215
Disclosure with consent ................................................................. 163
216
Disclosure of publicly available information ................................. 163
217
Disclosure of summaries and statistics .......................................... 163
218
Relationship with Parts 13 and 15 of the
Telecommunications Act 1997
....................................................... 164
Part 16--Miscellaneous
165
219
Simplified outline of this Part ........................................................ 165
220
Review of decisions ....................................................................... 165
221
Protection from civil proceedings .................................................. 169
222
Liability for damages ..................................................................... 170
223
Protection from criminal proceedings--Commissioner,
Classification Board etc. ................................................................ 170
224
Referral of matters to law enforcement agencies ........................... 171
225
Deferral of action in order to avoid prejudicing a criminal
investigation .................................................................................. 172
226
Copies of material.......................................................................... 172
227
Compensation for acquisition of property ..................................... 173
228
Service of notices by electronic means .......................................... 173
229
Service of notices on contact person etc. ....................................... 173
230
Instruments under this Act may provide for matters by
reference to other instruments ....................................................... 175
231
This Act does not limit Schedule 8 to the
Broadcasting
Services Act 1992
.......................................................................... 176
232
This Act does not limit the
Telecommunications Act 1997
............ 176
233
Implied freedom of political communication................................. 176
234
Concurrent operation of State and Territory laws .......................... 177
235
Liability of Australian hosting service providers and internet
service providers under State and Territory laws etc. .................... 177
236
This Act not to affect performance of State or Territory
functions ........................................................................................ 178
237
Revocation or variation of instruments .......................................... 179
238
Provider of social media service, relevant electronic service,
designated internet service or app distribution service .................. 179
239
Extended meaning of use ............................................................... 179
239A
Review of operation of this Act ..................................................... 179
240
Legislative rules ............................................................................ 180
No. , 2021
Online Safety Bill 2021
1
A Bill for an Act relating to online safety for
1
Australians, and for other purposes
2
The Parliament of Australia enacts:
3
Part 1--Preliminary
4
5
1 Short title
6
This Act is the
Online Safety
Act 2021
.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
Part 1
Preliminary
Section 3
2
Online Safety Bill 2021
No. , 2021
column 2 of the table. Any other statement in column 2 has effect
1
according to its terms.
2
3
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
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
4
enacted. It will not be amended to deal with any later amendments of
5
this Act.
6
(2) Any information in column 3 of the table is not part of this Act.
7
Information may be inserted in this column, or information in it
8
may be edited, in any published version of this Act.
9
3 Objects of this Act
10
The objects of this Act are:
11
(a) to improve online safety for Australians; and
12
(b) to promote online safety for Australians.
13
4 Simplified outline of this Act
14
•
There is to be an eSafety Commissioner.
15
•
The functions of the Commissioner include:
16
(a)
promoting online safety for Australians; and
17
(b)
administering a complaints system for cyber-bullying
18
material targeted at an Australian child; and
19
(c)
administering a complaints system for cyber-abuse
20
material targeted at an Australian adult; and
21
Preliminary
Part 1
Section 4
No. , 2021
Online Safety Bill 2021
3
(d)
administering a complaints and objections system for
1
non-consensual sharing of intimate images; and
2
(e)
administering the online content scheme; and
3
(f)
coordinating activities of Commonwealth Departments,
4
authorities and agencies relating to online safety for
5
Australians.
6
•
The complaints system for cyber-bullying material targeted at
7
an Australian child includes the following components:
8
(a)
the provider of a social media service, a relevant
9
electronic service or a designated internet service may
10
be given a notice (a
removal notice
) requiring the
11
removal from the service of cyber-bullying material
12
targeted at an Australian child;
13
(b)
a hosting service provider who hosts cyber-bullying
14
material targeted at an Australian child may be given a
15
notice (a
removal notice
) requiring the provider to cease
16
hosting the material;
17
(c)
a person who posts cyber-bullying material targeted at
18
an Australian child may be given a notice (an
end-user
19
notice
) requiring the person to remove the material,
20
refrain from posting cyber-bullying material or
21
apologise for posting the material.
22
•
The complaints system for cyber-abuse material targeted at an
23
Australian adult includes the following components:
24
(a)
the provider of a social media service, a relevant
25
electronic service or a designated internet service may
26
be given a notice (a
removal notice
) requiring the
27
removal from the service of cyber-abuse material
28
targeted at an Australian adult;
29
(b)
a person who posts cyber-abuse material targeted at an
30
Australian adult may be given a notice (a
removal
31
notice
) requiring the person to remove the material;
32
(c)
a hosting service provider who hosts cyber-abuse
33
material targeted at an Australian adult may be given a
34
notice (a
removal notice
) requiring the provider to cease
35
hosting the material.
36
Part 1
Preliminary
Section 4
4
Online Safety Bill 2021
No. , 2021
•
The complaints and objections system for non-consensual
1
sharing of intimate images includes the following
2
components:
3
(a)
a person who posts, or threatens to post, an intimate
4
image may be liable to a civil penalty;
5
(b)
the provider of a social media service, relevant
6
electronic service or designated internet service may be
7
given a notice (a
removal notice
) requiring the provider
8
to remove an intimate image from the service;
9
(c)
an end-user of a social media service, relevant electronic
10
service or designated internet service who posts an
11
intimate image on the service may be given a notice (a
12
removal notice
) requiring the end-user to remove the
13
image from the service;
14
(d)
a hosting service provider who hosts an intimate image
15
may be given a notice (a
removal notice
) requiring the
16
provider to cease hosting the image.
17
•
The online content scheme includes the following
18
components:
19
(a)
the provider of a social media service, relevant
20
electronic service or designated internet service may be
21
given a notice (a
removal notice
) requiring the provider
22
to remove certain material;
23
(b)
a hosting service provider may be given a notice (a
24
removal notice
) requiring the provider to cease hosting
25
certain material;
26
(c)
the provider of an internet search engine service may be
27
given a notice (a
link deletion notice
) requiring the
28
provider to cease providing a link to certain material;
29
(d)
the provider of an app distribution service may be given
30
a notice (an
app removal notice
) requiring the provider
31
to cease enabling end-users to download an app that
32
facilitates the posting of certain material on a social
33
media service, relevant electronic service or designated
34
internet service;
35
(e)
bodies and associations that represent sections of the
36
online industry may develop industry codes;
37
Preliminary
Part 1
Section 5
No. , 2021
Online Safety Bill 2021
5
(f)
the Commissioner may make an industry standard;
1
(g)
the Commissioner may make service provider
2
determinations regulating service providers in the online
3
industry.
4
•
The Minister may determine basic online safety expectations
5
for social media services, relevant electronic services and
6
designated internet services.
7
•
An internet service provider may be requested or required to
8
block access to:
9
(a)
material that promotes abhorrent violent conduct; or
10
(b)
material that incites abhorrent violent conduct; or
11
(c)
material that instructs in abhorrent violent conduct; or
12
(d)
material that depicts abhorrent violent conduct.
13
5 Definitions
14
In this Act:
15
abhorrent violent conduct
has the same meaning as in Subdivision
16
H of Division 474 of the
Criminal Code
.
17
access
includes:
18
(a) access that is subject to a pre-condition (for example, the use
19
of a password); and
20
(b) access by way of push technology; and
21
(c) access by way of a standing request.
22
access-control system
, in relation to material, means a system
23
under which:
24
(a) persons seeking access to the material have a password, or a
25
Personal Identification Number, that provides a means of
26
limiting access by other persons to the material; or
27
(b) persons seeking access to the material have been provided
28
with some other means of limiting access by other persons to
29
the material.
30
Part 1
Preliminary
Section 5
6
Online Safety Bill 2021
No. , 2021
account
includes:
1
(a) a free account; and
2
(b) a pre-paid account; and
3
(c) anything that may reasonably be regarded as the equivalent
4
of an account.
5
ACMA
means the Australian Communications and Media
6
Authority.
7
adult
means an individual who is 18 or older.
8
app
includes a computer program.
9
app distribution service
means a service that enables end-users to
10
download apps, where the download of the apps is by means of a
11
carriage service.
12
app removal notice
means a notice given under section 128.
13
Appropriation Act
means an Act appropriating money for
14
expenditure out of the Consolidated Revenue Fund.
15
Australia
, when used in a geographical sense, includes all the
16
external Territories.
17
Australian adult
means an adult who is ordinarily resident in
18
Australia.
19
Australian child
means a child who is ordinarily resident in
20
Australia.
21
Australian hosting service provider
means a person who provides
22
a hosting service that involves hosting material in Australia.
23
Australian police force
means:
24
(a) the Australian Federal Police; or
25
(b) the police force of a State or Territory.
26
Australians
means individuals who are ordinarily resident in
27
Australia.
28
Preliminary
Part 1
Section 5
No. , 2021
Online Safety Bill 2021
7
basic online safety expectations
has the meaning given by section
1
45.
2
blocking notice
means a notice under section 99.
3
blocking request
means a request under section 95.
4
broadcasting service
has the same meaning as in the
Broadcasting
5
Services Act 1992.
6
carriage service
has the same meaning as in the
7
Telecommunications Act 1997
.
8
child
means an individual who has not reached 18 years.
9
civil proceeding
includes a civil action.
10
class 1 material
has the meaning given by section 106.
11
class 2 material
has the meaning given by section 107.
12
Classification Board
means the Classification Board established
13
by the
Classification (Publications, Films and Computer Games)
14
Act 1995
.
15
Commissioner
means the eSafety Commissioner.
16
Note:
See section 26.
17
computer game
has the same meaning as in the
Classification
18
(Publications, Films and Computer Games) Act 1995
.
19
consent
, when used in relation to an intimate image or private
20
sexual material, has the meaning given by section 21.
21
Convention on the Rights of the Child
means the Convention on
22
the Rights of the Child done at New York on 20 November 1989.
23
Note:
The Convention is in Australian Treaty Series 1991 No. 4 ([1991]
24
ATS 4) and could in 2021 be viewed in the Australian Treaties
25
Library on the AustLII website (http://www.austlii.edu.au).
26
court/tribunal proceedings
means words spoken and acts done in
27
the course of, or for purposes of or incidental to, the transacting of
28
the business of a court or a tribunal, and includes:
29
Part 1
Preliminary
Section 5
8
Online Safety Bill 2021
No. , 2021
(a) evidence given before the court or tribunal; and
1
(b) a document presented or submitted to the court or tribunal;
2
and
3
(c) a document issued or published by, or with the authority of,
4
the court or tribunal.
5
cyber-abuse material targeted at an Australian adult
has the
6
meaning given by section 7.
7
cyber-bullying material targeted at an Australian child
has the
8
meaning given by section 6.
9
data storage device
means any article or material (for example, a
10
disk or file server) from which information is capable of being
11
reproduced, with or without the aid of any other article or device.
12
de-identified
: information is
de-identified
if the information is no
13
longer about:
14
(a) an identifiable individual; or
15
(b) an individual who is reasonably identifiable.
16
designated internet service
has the meaning given by section 14.
17
electronic message
has the same meaning as in the
Spam Act 2003
.
18
electronic service
means:
19
(a) a service that allows end-users to access material using a
20
carriage service; or
21
(b) a service that delivers material to persons having equipment
22
appropriate for receiving that material, where the delivery of
23
the service is by means of a carriage service;
24
but does not include:
25
(c) a broadcasting service; or
26
(d) a datacasting service (within the meaning of the
27
Broadcasting Services Act 1992
).
28
end-user notice
means a notice under subsection 70(1).
29
engage in conduct
means:
30
(a) do an act; or
31
Preliminary
Part 1
Section 5
No. , 2021
Online Safety Bill 2021
9
(b) omit to perform an act.
1
exempt court/tribunal content service
means a service to the
2
extent to which it delivers, or provides access to, material that
3
consists of court/tribunal proceedings.
4
exempt official-inquiry content service
means a service to the
5
extent to which it delivers, or provides access to, material that
6
consists of official-inquiry proceedings.
7
exempt Parliamentary content service
means a service to the
8
extent to which it delivers, or provides access to, material that
9
consists of Parliamentary proceedings.
10
exempt provision
of an intimate image has the meaning given by
11
section 86.
12
Federal Court
means the Federal Court of Australia.
13
film
has the same meaning as in the
Classification (Publications,
14
Films and Computer Games) Act 1995
.
15
hosting service
has the meaning given by section 17.
16
hosting service provider
means a person who provides a hosting
17
service.
18
immediate circle
has the same meaning as in the
19
Telecommunications Act 1997
.
20
internet carriage
service
means a listed carriage service that
21
enables end-users to access the internet.
22
internet service provider
has the meaning given by section 19.
23
intimate image
has the meaning given by section 15.
24
legislative rules
means rules made under section 240.
25
link deletion notice
means a notice given under section 124.
26
listed carriage service
has the same meaning as in the
27
Telecommunications Act 1997
.
28
Part 1
Preliminary
Section 5
10
Online Safety Bill 2021
No. , 2021
material
means material:
1
(a) whether in the form of text; or
2
(b) whether in the form of data; or
3
(c) whether in the form of speech, music or other sounds; or
4
(d) whether in the form of visual images (moving or otherwise);
5
or
6
(e) whether in any other form; or
7
(f) whether in any combination of forms.
8
material that depicts abhorrent violent conduct
has the meaning
9
given by section 9.
10
National Classification Code
means the Code (within the meaning
11
of the
Classification (Publications, Films and Computer Games)
12
Act 1995
).
13
non-consensual intimate image of a person
has the meaning given
14
by section 16.
15
objection notice
means a notice under section 33.
16
official-inquiry proceedings
means words spoken and acts done in
17
the course of, or for purposes of or incidental to, the transacting of
18
the business of:
19
(a) a Royal Commission; or
20
(b) an official inquiry;
21
and includes:
22
(c) evidence given before the Royal Commission or official
23
inquiry; and
24
(d) a document presented or submitted to the Royal Commission
25
or official inquiry; and
26
(e) a document issued or published by, or with the authority of,
27
the Royal Commission or official inquiry.
28
on-demand program service
has the meaning given by section 18.
29
online safety for Australians
means the capacity of Australians to
30
use social media services and electronic services in a safe manner.
31
Preliminary
Part 1
Section 5
No. , 2021
Online Safety Bill 2021
11
online safety for children
means the capacity of Australian
1
children to use social media services and electronic services in a
2
safe manner, and includes the protection of Australian children
3
using those services from cyber-bullying material targeted at an
4
Australian child.
5
Online Safety Special Account
means the Online Safety Special
6
Account referred to in section 190.
7
parent
: without limiting who is a parent of anyone for the purposes
8
of this Act, a person is the parent of another person if the other
9
person is a child of the person within the meaning of the
Family
10
Law Act 1975
.
11
Parliamentary proceedings
means words spoken and acts done in
12
the course of, or for purposes of or incidental to, the transacting of
13
the business of:
14
(a) a Parliament; or
15
(b) a legislature; or
16
(c) a committee of a Parliament or legislature;
17
and includes:
18
(d) evidence given before the Parliament, legislature or
19
committee; and
20
(e) a document presented or submitted to the Parliament,
21
legislature or committee; and
22
(f) a document issued or published by, or with the authority of,
23
the Parliament, legislature or committee.
24
point-to-multipoint service
means a carriage service which allows
25
a person to transmit material to more than one end-user
26
simultaneously.
27
posted
by an end-user of a social media service, relevant electronic
28
service or designated internet service has the meaning given by
29
section 11.
30
Note:
Other parts of speech and grammatical forms of "posted" (for
31
example, "post") have a corresponding meaning (see section 18A of
32
the
Acts Interpretation Act 1901
).
33
private sexual material
means:
34
Part 1
Preliminary
Section 5
12
Online Safety Bill 2021
No. , 2021
(a) material that:
1
(i) depicts a person who is, or appears to be, 18 years of
2
age or older and who is engaged in, or appears to be
3
engaged in, a sexual pose or sexual activity (whether or
4
not in the presence of other persons); and
5
(ii) does so in circumstances that reasonable persons would
6
regard as giving rise to an expectation of privacy; or
7
(b) material the dominant characteristic of which is the depiction
8
of:
9
(i) a sexual organ or the anal region of a person who is, or
10
appears to be, 18 years of age or older; or
11
(ii) if a person is a female person, or a transgender or
12
intersex person, who is, or appears to be, 18 years of age
13
or older--either or both of the person's breasts;
14
where the depiction is in circumstances that reasonable
15
persons would regard as giving rise to an expectation of
16
privacy.
17
provided
on a social media service, relevant electronic service or
18
designated internet service has the meaning given by section 10.
19
provider
of a social media service, relevant electronic service,
20
designated internet service or app distribution service has a
21
meaning affected by section 238.
22
publication
has the same meaning as in the
Classification
23
(Publications, Films and Computer Games) Act 1995
. Despite
24
section 18A of the
Acts Interpretation Act 1901
, this definition
25
does not affect the meaning of the expressions
publish
or
26
published
when used in this Act.
27
relevant electronic service
has the meaning given by section 13A.
28
remedial notice
means a notice given under section 119 or 120.
29
removal notice
means a notice under:
30
(a) section 65; or
31
(b) section 66; or
32
(c) section 77; or
33
(d) section 78; or
34
Preliminary
Part 1
Section 5
No. , 2021
Online Safety Bill 2021
13
(e) section 79; or
1
(f) section 88; or
2
(g) section 89; or
3
(h) section 90; or
4
(i) section 109; or
5
(j) section 110; or
6
(k) section 114; or
7
(l) section 115.
8
removed
from a social media service, relevant electronic service or
9
designated internet service has the meaning given by section 12.
10
restricted access system
has the meaning given by section 108.
11
Secretary
means the Secretary of the Department.
12
serious harm
means serious
physical harm or serious
harm to a
13
person's mental health, whether temporary or permanent.
14
serious harm to a person's mental health
includes:
15
(a) serious
psychological harm; and
16
(b) serious
distress.
17
service
includes a website.
18
service provider determination
means a determination under
19
section 151.
20
service provider rule
means each of the rules (if any) set out in a
21
service provider determination.
22
social media service
has the meaning given by section 13.
23
stored material
means material kept on a data storage device. For
24
this purpose, disregard any storage of material on a highly
25
transitory basis as an integral function of the technology used in its
26
transmission.
27
Note:
Momentary buffering (including momentary storage in a router in
28
order to resolve a path for further transmission) is an example of
29
storage on a highly transitory basis.
30
Part 1
Preliminary
Section 6
14
Online Safety Bill 2021
No. , 2021
target
of cyber-abuse material has the meaning given by section 7.
1
target
of cyber-bullying material has the meaning given by
2
section 6.
3
terms of use
includes anything that may be reasonably regarded as
4
the equivalent of terms of use.
5
threat
includes a threat made by any conduct, whether express or
6
implied and whether conditional or unconditional.
7
use
has a meaning affected by section 239.
8
6 Cyber-bullying material targeted at an Australian child
9
(1) For the purposes of this Act, if material satisfies the following
10
conditions:
11
(a) the material is provided on:
12
(i) a social media service; or
13
(ii) a relevant electronic service; or
14
(iii) a designated internet service;
15
(b) an ordinary reasonable person would conclude that:
16
(i) it is likely that the material was intended to have an
17
effect on a particular Australian child; and
18
(ii) the material would be likely to have the effect on the
19
Australian child of seriously threatening, seriously
20
intimidating, seriously harassing or seriously
21
humiliating the Australian child;
22
(c) such other conditions (if any) as are set out in the legislative
23
rules;
24
then:
25
(d) the material is
cyber-bullying material targeted at the
26
Australian child
; and
27
(e) the Australian child is the
target
of the material.
28
(2) An effect mentioned in subsection (1) may be:
29
(a) a direct result of the material being accessed by, or delivered
30
to, the Australian child; or
31
Preliminary
Part 1
Section 7
No. , 2021
Online Safety Bill 2021
15
(b) an indirect result of the material being accessed by, or
1
delivered to, one or more other persons.
2
(3) Subsection (1) has effect subject to subsection (4).
3
(4) For the purposes of this Act, if:
4
(a) a person is:
5
(i) in a position of authority over an Australian child; and
6
(ii) an end-user of a social media service, relevant
7
electronic service or designated internet service; and
8
(b) in the lawful exercise of that authority, the person posts
9
material on the service; and
10
(c) the posting of the material is reasonable action taken in a
11
reasonable manner;
12
the material is taken not to be cyber-bullying material targeted at
13
the Australian child.
14
7 Cyber-abuse material targeted at an Australian adult
15
(1) For the purposes of this Act, if material satisfies the following
16
conditions:
17
(a) the material is provided on:
18
(i) a social media service; or
19
(ii) a relevant electronic service; or
20
(iii) a designated internet service;
21
(b) an ordinary reasonable person would conclude that it is likely
22
that the material was intended to have an effect of causing
23
serious harm to a particular Australian adult;
24
(c) an ordinary reasonable person in the position of the
25
Australian adult would regard the material as being, in all the
26
circumstances, menacing, harassing or offensive;
27
(d) such other conditions (if any) as are set out in the legislative
28
rules;
29
then:
30
(e) the material is
cyber-abuse material targeted at the
31
Australian adult
; and
32
(f) the Australian adult is the
target
of the material.
33
Part 1
Preliminary
Section 8
16
Online Safety Bill 2021
No. , 2021
Note:
For
serious harm
, see section 5.
1
(2) An effect mentioned in paragraph (1)(b) may be:
2
(a) a direct result of the material being accessed by, or delivered
3
to, the Australian adult; or
4
(b) an indirect result of the material being accessed by, or
5
delivered to, one or more other persons.
6
8 Determining whether material is offensive
7
(1) The matters to be taken into account in deciding for the purposes of
8
this Act whether an ordinary reasonable person in the position of a
9
particular Australian adult would regard particular material as
10
being, in all the circumstances, offensive, include:
11
(a) the standards of morality, decency and propriety generally
12
accepted by reasonable adults; and
13
(b) the literary, artistic or educational merit (if any) of the
14
material; and
15
(c) the general character of the material (including whether it is
16
of a medical, legal or scientific character).
17
(2) If:
18
(a) material is provided on:
19
(i) a social media service; or
20
(ii) a relevant electronic service; or
21
(iii) a designated internet service; and
22
(b) the material is private sexual material;
23
then, in deciding for the purposes of this Act whether an ordinary
24
reasonable person in the position of a particular Australian adult
25
would regard the material as being, in all the circumstances,
26
offensive, regard must be had to whether the subject, or each of the
27
subjects, of the private sexual material gave consent to the material
28
being provided on the service.
29
(3) Subsection (2) does not limit subsection (1).
30
Preliminary
Part 1
Section 9
No. , 2021
Online Safety Bill 2021
17
9 Material that depicts abhorrent violent conduct
1
(1) For the purposes of this Act,
material that depicts abhorrent
2
violent conduct
means material that is:
3
(a) audio material; or
4
(b) visual material; or
5
(c) audio-visual material;
6
that records or streams abhorrent violent conduct.
7
(2) For the purposes of subsection (1), it is immaterial whether the
8
material has been altered.
9
10 When material is provided on a social media service, relevant
10
electronic service or designated internet service
11
For the purposes of this Act, material is
provided
on a social media
12
service, relevant electronic service or designated internet service if
13
the material is accessible to, or delivered to, one or more of the
14
end-users using the service.
15
11 When material is posted by an end-user of a social media service,
16
relevant electronic service or designated internet service
17
For the purposes of this Act, material is
posted
on a social media
18
service, relevant electronic service or designated internet service
19
by an end-user if the end-user causes the material to be accessible
20
to, or delivered to, one or more other end-users using the service.
21
12 When material is removed from a social media service, relevant
22
electronic service or designated internet service
23
For the purposes of this Act, material is
removed
from a social
24
media service, relevant electronic service or designated internet
25
service if the material is neither accessible to, nor delivered to, any
26
of the end-users in Australia using the service.
27
13 Social media service
28
(1) For the purposes of this Act,
social media service
means:
29
Part 1
Preliminary
Section 13A
18
Online Safety Bill 2021
No. , 2021
(a) an electronic service that satisfies the following conditions:
1
(i) the sole or primary purpose of the service is to enable
2
online social interaction between 2 or more end-users;
3
(ii) the service allows end-users to link to, or interact with,
4
some or all of the other end-users;
5
(iii) the service allows end-users to post material on the
6
service;
7
(iv) such other conditions (if any) as are set out in the
8
legislative rules; or
9
(b) an electronic service specified in the legislative rules;
10
but does not include an exempt service (as defined by
11
subsection (4)).
12
Note:
Online social interaction does not include (for example) online
13
business interaction.
14
(2) For the purposes of subparagraph (1)(a)(i), online social interaction
15
includes online interaction that enables end-users to share material
16
for social purposes.
17
Note:
Social purposes does not include (for example) business purposes.
18
(3) In determining whether the condition set out in
19
subparagraph (1)(a)(i) is satisfied, disregard any of the following
20
purposes:
21
(a) the provision of advertising material on the service;
22
(b) the generation of revenue from the provision of advertising
23
material on the service.
24
Exempt services
25
(4) For the purposes of this section, a service is an
exempt service
if:
26
(a) none of the material on the service is accessible to, or
27
delivered to, one or more end-users in Australia; or
28
(b) the service is specified in the legislative rules.
29
13A Relevant electronic service
30
(1) For the purposes of this Act,
relevant electronic service
means any
31
of the following electronic services:
32
Preliminary
Part 1
Section 14
No. , 2021
Online Safety Bill 2021
19
(a) a service that enables end-users to communicate, by means of
1
email, with other end-users;
2
(b) an instant messaging service that enables end-users to
3
communicate with other end-users;
4
(c) an SMS service that enables end-users to communicate with
5
other end-users;
6
(d) an MMS service that enables end-users to communicate with
7
other end-users;
8
(e) a chat service that enables end-users to communicate with
9
other end-users;
10
(f) a service that enables end-users to play online games with
11
other end-users;
12
(g) an electronic service specified in the legislative rules;
13
but does not include an exempt service (as defined by
14
subsection (2)).
15
Note 1:
SMS
is short for short message service.
16
Note 2:
MMS
is short for multimedia message service.
17
Exempt services
18
(2) For the purposes of this section, a service is an
exempt service
if
19
none of the material on the service is accessible to, or delivered to,
20
one or more end-users in Australia.
21
14 Designated internet service
22
(1) For the purposes of this Act,
designated internet service
means:
23
(a) a service that allows end-users to access material using an
24
internet carriage service; or
25
(b) a service that delivers material to persons having equipment
26
appropriate for receiving that material, where the delivery of
27
the service is by means of an internet carriage service;
28
but does not include:
29
(c) a social media service; or
30
(d) a relevant electronic service; or
31
(e) an on-demand program service; or
32
(f) a service specified under subsection (2); or
33
Part 1
Preliminary
Section 15
20
Online Safety Bill 2021
No. , 2021
(g) an exempt service (as defined by subsection (3)).
1
(2) The Minister may, by legislative instrument, specify one or more
2
services for the purposes of paragraph (1)(f).
3
Exempt services
4
(3) For the purposes of this section, a service is an
exempt service
if
5
none of the material on the service is accessible to, or delivered to,
6
one or more end-users in Australia.
7
15 Intimate image
8
(1) This section sets out the circumstances in which material is an
9
intimate image
of a person for the purposes of this Act.
10
Depiction of private parts
11
(2) Material is an
intimate image
of a person if:
12
(a) the material consists of a still visual image or moving visual
13
images; and
14
(b) the material depicts, or appears to depict:
15
(i) the person's genital area or anal area (whether bare or
16
covered by underwear); or
17
(ii) if the person is a female person or a transgender or
18
intersex person--either or both of the person's breasts;
19
in circumstances in which an ordinary reasonable person
20
would reasonably expect to be afforded privacy.
21
Depiction of private activity
22
(3) Material is an
intimate image
of a person if:
23
(a) the material consists of a still visual image or moving visual
24
images; and
25
(b) the material depicts, or appears to depict, the person:
26
(i) in a state of undress; or
27
(ii) using the toilet; or
28
(iii) showering; or
29
(iv) having a bath; or
30
Preliminary
Part 1
Section 16
No. , 2021
Online Safety Bill 2021
21
(v) engaged in a sexual act of a kind not ordinarily done in
1
public; or
2
(vi) engaged in any other like activity;
3
in circumstances in which an ordinary reasonable person
4
would reasonably expect to be afforded privacy.
5
Depiction of person without attire of religious or cultural
6
significance
7
(4) Material is an
intimate image
of a person if:
8
(a) the material consists of a still visual image or moving visual
9
images; and
10
(b) because of the person's religious or cultural background, the
11
person consistently wears particular attire of religious or
12
cultural significance whenever the person is in public; and
13
(c) the material depicts, or appears to depict, the person:
14
(i) without that attire; and
15
(ii) in circumstances in which an ordinary reasonable
16
person would reasonably expect to be afforded privacy.
17
Interpretative provisions
18
(5) For the purposes of this section, it is immaterial whether material
19
has been altered.
20
(6) For the purposes of this section, if material depicts, or appears to
21
depict, a part of the body of a person, the material is taken to depict
22
the person, or to appear to depict the person, as the case requires.
23
16 Non-consensual intimate image of a person
24
For the purposes of this Act, if:
25
(a) an intimate image of a person is provided on:
26
(i) a social media service; or
27
(ii) a relevant electronic service; or
28
(iii) a designated internet service; and
29
(b) the person did not consent to the provision of the intimate
30
image on the service; and
31
Part 1
Preliminary
Section 17
22
Online Safety Bill 2021
No. , 2021
(c) the provision of the intimate image on the service is not an
1
exempt provision of the intimate image;
2
the intimate image is a non-consensual intimate image of the
3
person.
4
17 Hosting service
5
For the purposes of this Act, if:
6
(a) a person (the
first person
) hosts stored material that has been
7
provided on:
8
(i) a social media service; or
9
(ii) a relevant electronic service; or
10
(iii) a designated internet service; and
11
(b) the first person or another person provides:
12
(i) a social media service; or
13
(ii) a relevant electronic service; or
14
(iii) a designated internet service;
15
on which the hosted material is provided;
16
the hosting of the stored material by the first person is taken to be
17
the provision by the first person of a
hosting service
.
18
18 On-demand program service
19
(1) For the purposes of this Act,
on-demand program service
means a
20
service:
21
(a) that is provided to end-users using an internet carriage
22
service; and
23
(b) to the extent to which the service provides material that is
24
identical to a program that has been, or is being, transmitted
25
on:
26
(i) a commercial television broadcasting service provided
27
under a commercial television broadcasting licence; or
28
(ii) a subscription television broadcasting service provided
29
under a subscription television broadcasting licence; or
30
(iii) a subscription television narrowcasting service; or
31
(iv) a television broadcasting service provided by the
32
Australian Broadcasting Corporation; or
33
Preliminary
Part 1
Section 19
No. , 2021
Online Safety Bill 2021
23
(v) a television broadcasting service provided by the
1
Special Broadcasting Service Corporation.
2
(2) For the purposes of subsection (1),
in determining whether material
3
is identical to a program, disregard any differences that are
4
attributable to the technical characteristics of the provision or
5
transmission (for example, video resolution or sound quality).
6
(3) For the purposes of subsection (1), in determining whether material
7
is identical to a program, disregard the presence or absence of:
8
(a) a watermark-type logo; or
9
(b) a watermark-type insignia.
10
(4) An expression used in paragraph (1)(b) has the same meaning in
11
that paragraph as it has in the
Broadcasting Services Act 1992
.
12
19 Internet service providers
13
Basic definition
14
(1) For the purposes of this Act, if a person supplies, or proposes to
15
supply, an internet carriage service to the public, the person is an
16
internet service provider
.
17
Declared internet service providers
18
(2) The Minister may, by legislative instrument, declare that a
19
specified person who supplies, or proposes to supply, a specified
20
internet carriage service is an
internet service provider
for the
21
purposes of this Act.
22
Note:
For specification by class, see subsection 13(3) of the
Legislation Act
23
2003
.
24
20 Supply of internet carriage service to the public
25
(1) This section sets out the circumstances in which an internet
26
carriage service is taken, for the purposes of section 19, to be
27
supplied to the public.
28
(2) If:
29
Part 1
Preliminary
Section 21
24
Online Safety Bill 2021
No. , 2021
(a) an internet carriage service is used for the carriage of
1
material between 2 end-users; and
2
(b) each end-user is outside the immediate circle of the supplier
3
of the service;
4
the service is supplied to the public.
5
Note:
If a company makes internet material available for access on the
6
internet, and an individual obtains access to the material using an
7
internet carriage service, the company and the individual are end-users
8
in relation to the carriage of the material by the internet carriage
9
service.
10
(3) If:
11
(a) an internet carriage service is used to supply
12
point-to-multipoint services to end-users; and
13
(b) at least one end-user is outside the immediate circle of the
14
supplier of the service;
15
the service is supplied to the public.
16
21 Consent
17
For the purposes of the application of this Act to an intimate image
18
or private sexual material,
consent
means consent that is:
19
(a) express; and
20
(b) voluntary; and
21
(c) informed;
22
but does not include:
23
(d) consent given by a child; or
24
(e) consent given by an adult who is in a mental or physical
25
condition (whether temporary or permanent) that:
26
(i) makes the adult incapable of giving consent; or
27
(ii) substantially impairs the capacity of the adult to give
28
consent.
29
22 Crown to be bound
30
This Act binds the Crown in each of its capacities.
31
Preliminary
Part 1
Section 23
No. , 2021
Online Safety Bill 2021
25
23 Application of this Act
1
(1) This Act extends to every external Territory.
2
(2) This Act extends to acts, omissions, matters and things outside
3
Australia.
4
24 Convention on the Rights of the Child
5
(1) The Commissioner must, as appropriate, have regard to the
6
Convention on the Rights of the Child in the performance of
7
functions:
8
(a) conferred by or under this Act; and
9
(b) in relation to Australian children.
10
(2) Subsection (1) does not limit the matters to which the
11
Commissioner may have regard.
12
Part 2
eSafety Commissioner
Section 25
26
Online Safety Bill 2021
No. , 2021
Part 2--eSafety Commissioner
1
2
25 Simplified outline of this Part
3
•
There is to be an eSafety Commissioner.
4
•
The functions of the Commissioner include:
5
(a)
promoting online safety for Australians; and
6
(b)
administering a complaints system for cyber-bullying
7
material targeted at an Australian child; and
8
(c)
administering a complaints system for cyber-abuse
9
material targeted at an Australian adult; and
10
(d)
administering a complaints and objections system for
11
non-consensual sharing of intimate images; and
12
(e)
administering the online content scheme; and
13
(f)
coordinating activities of Commonwealth Departments,
14
authorities and agencies relating to online safety for
15
Australians.
16
Note:
For administrative provisions relating to the Commissioner, see
17
Part 11.
18
26 eSafety Commissioner
19
There is to be an eSafety Commissioner.
20
Note:
In this Act,
Commissioner
means the eSafety Commissioner (see
21
section 5).
22
27 Functions of the Commissioner
23
(1) The functions of the Commissioner are:
24
(a) such functions as are conferred on the Commissioner by:
25
(i) this Act; or
26
(ii) any other law of the Commonwealth; and
27
(b) to promote online safety for Australians; and
28
eSafety Commissioner
Part 2
Section 27
No. , 2021
Online Safety Bill 2021
27
(c) to support and encourage the implementation of measures to
1
improve online safety for Australians; and
2
(d) to coordinate activities of Commonwealth Departments,
3
authorities and agencies relating to online safety for
4
Australians; and
5
(e) to collect, analyse, interpret and disseminate information
6
relating to online safety for Australians; and
7
(f) to support, encourage, conduct, accredit and evaluate
8
educational, promotional and community awareness
9
programs that are relevant to online safety for Australians;
10
and
11
(g) to make, on behalf of the Commonwealth, grants of financial
12
assistance in relation to online safety for Australians; and
13
(h) to support, encourage, conduct and evaluate research about
14
online safety for Australians; and
15
(i) to publish (whether on the internet or otherwise) reports and
16
papers relating to online safety for Australians; and
17
(j) to give the Minister reports about online safety for
18
Australians; and
19
(k) to advise the Minister about online safety for Australians;
20
and
21
(l) to consult and cooperate with other persons, organisations
22
and governments on online safety for Australians; and
23
(m) to advise and assist persons in relation to their obligations
24
under this Act; and
25
(n) to monitor compliance with this Act; and
26
(o) to promote compliance with this Act; and
27
(p) to formulate, in writing, guidelines or statements that:
28
(i) recommend best practices for persons and bodies
29
involved in online safety for Australians; and
30
(ii) are directed towards facilitating the timely and
31
appropriate resolution of incidents involving material
32
provided on a social media service, relevant electronic
33
service or designated internet service; and
34
(q) to promote guidelines and statements formulated under
35
paragraph (p); and
36
Part 2
eSafety Commissioner
Section 28
28
Online Safety Bill 2021
No. , 2021
(r) such other functions (if any) as are specified in the legislative
1
rules; and
2
(s) to do anything incidental to or conducive to the performance
3
of any of the above functions.
4
Grants
5
(2) Financial assistance may be granted under paragraph (1)(g) to:
6
(a) a State; or
7
(b) a Territory; or
8
(c) a person other than a State or Territory.
9
(3) The terms and conditions on which financial assistance is granted
10
under paragraph (1)(g) are to be set out in a written agreement
11
between the Commonwealth and the grant recipient.
12
(4) An agreement under subsection (3) is to be entered into by the
13
Commissioner on behalf of the Commonwealth.
14
Guidelines and statements are not legislative instruments
15
(5) Guidelines and statements formulated under paragraph (1)(p) are
16
not legislative instruments.
17
28 Powers of the Commissioner
18
The Commissioner has power to do all things necessary or
19
convenient to be done for or in connection with the performance of
20
the Commissioner's functions.
21
Note:
For supplementary powers, see section 178.
22
Complaints, objections and investigations
Part 3
Introduction
Division 1
Section 29
No. , 2021
Online Safety Bill 2021
29
Part 3--Complaints, objections and investigations
1
Division 1--Introduction
2
29 Simplified outline of this Part
3
•
There is a complaints system for cyber-bullying material
4
targeted at an Australian child.
5
•
There is a complaints and objections system for
6
non-consensual sharing of intimate images.
7
•
There is a complaints system for cyber-abuse material targeted
8
at an Australian adult.
9
•
There is a complaints system relating to the online content
10
scheme.
11
Part 3
Complaints, objections and investigations
Division 2
Complaints about cyber-bullying material targeted at an Australian child
Section 30
30
Online Safety Bill 2021
No. , 2021
Division 2--Complaints about cyber-bullying material
1
targeted at an Australian child
2
30 Complaints about cyber-bullying material
3
Complaint made by an Australian child
4
(1) If an Australian child has reason to believe that the child was or is
5
the target of cyber-bullying material that has been, or is being,
6
provided on:
7
(a) a particular social media service; or
8
(b) a particular relevant electronic service; or
9
(c) a particular designated internet service;
10
the child may make a complaint to the Commissioner about the
11
matter.
12
Complaint made on behalf of an Australian child
13
(2) If:
14
(a) a person (the
responsible person
) has reason to believe that
15
cyber-bullying material targeted at an Australian child has
16
been, or is being, provided on:
17
(i) a particular social media service; or
18
(ii) a particular relevant electronic service; or
19
(iii) a particular designated internet service; and
20
(b) either:
21
(i) the responsible person is a parent or guardian of the
22
child; or
23
(ii) the child has authorised the responsible person to make
24
a complaint about the matter;
25
the responsible person may, on behalf of the child, make a
26
complaint to the Commissioner about the matter.
27
Complaint made by an adult who was an Australian child
28
(3) If:
29
(a) a person is an adult; and
30
Complaints, objections and investigations
Part 3
Complaints about cyber-bullying material targeted at an Australian child
Division 2
Section 30
No. , 2021
Online Safety Bill 2021
31
(b) the person has reason to believe that, when the person was an
1
Australian child, the person was the target of cyber-bullying
2
material that was provided on:
3
(i) a particular social media service; or
4
(ii) a particular relevant electronic service; or
5
(iii) a particular designated internet service;
6
the person may make a complaint to the Commissioner about the
7
matter, so long as:
8
(c) the complaint is made within a reasonable time after the
9
person became aware of the matter; and
10
(d) the complaint is made within 6 months after the person
11
reached 18 years.
12
Complaint previously made to the service provider
13
(4) If:
14
(a) a complaint made by a person under this section concerns
15
material that has been, or is being, provided on:
16
(i) a social media service; or
17
(ii) a relevant electronic service; or
18
(iii) a designated internet service; and
19
(b) the person wants the Commissioner to give the provider of
20
the service a section 65 removal notice requiring the provider
21
to remove the material from the service;
22
the complaint under this section must be accompanied by evidence
23
that the material was the subject of a complaint that was previously
24
made to the provider of the service.
25
(5) For the purposes of subsection (4), evidence must be in a form
26
required by the Commissioner.
27
(6) If:
28
(a) a social media service; or
29
(b) a relevant electronic service; or
30
(c) a designated internet service;
31
issues a receipt or complaint number to a complainant as part of its
32
ordinary business processes, the Commissioner may require
33
evidence to be in the form of the receipt or complaint number.
34
Part 3
Complaints, objections and investigations
Division 2
Complaints about cyber-bullying material targeted at an Australian child
Section 31
32
Online Safety Bill 2021
No. , 2021
(7) If:
1
(a) a social media service; or
2
(b) a relevant electronic service; or
3
(c) a designated internet service;
4
does not issue a receipt or complaint number to a complainant as
5
part of its ordinary business processes, the Commissioner may
6
require evidence to be:
7
(d) in the form of a screen shot; or
8
(e) in the form of a statutory declaration; or
9
(f) in such other form as the Commissioner specifies.
10
(8) Subsections (6) and (7) do not limit subsection (5).
11
(9) A requirement under subsection (5), (6) or (7) is not a legislative
12
instrument.
13
31 Investigation of complaints
14
(1) The Commissioner may investigate a complaint made under
15
section 30.
16
(2) An investigation under this section is to be conducted as the
17
Commissioner thinks fit.
18
(3) The Commissioner may, for the purposes of an investigation,
19
obtain information from such persons, and make such inquiries, as
20
the Commissioner thinks fit.
21
(4) Subsections (1), (2) and (3) have effect subject to Part 14 (which
22
confers certain investigative powers on the Commissioner).
23
Termination of investigation
24
(5) The Commissioner may terminate an investigation under this
25
section.
26
Complaints, objections and investigations
Part 3
Complaints about, and objections to, intimate images
Division 3
Section 32
No. , 2021
Online Safety Bill 2021
33
Division 3--Complaints about, and objections to, intimate
1
images
2
32 Complaints
3
Complaint made by a person depicted in an intimate image
4
(1) If a person has reason to believe that section 75 has been
5
contravened in relation to an intimate image of the person, the
6
person may make a complaint to the Commissioner about the
7
matter.
8
(2) If the complainant is not able to identify the person who allegedly
9
contravened section 75, the complainant must make a statement to
10
the Commissioner to that effect.
11
Complaint made on behalf of a person depicted in an intimate
12
image
13
(3) If a person (the
authorised person
) has reason to believe that
14
section 75 has been contravened in relation to an intimate image of
15
another person (the
depicted person
), the authorised person may,
16
on behalf of the depicted person, make a complaint to the
17
Commissioner about the matter, so long as:
18
(a) the depicted person has authorised the authorised person to
19
make a complaint about the matter; or
20
(b) both:
21
(i) the depicted person is a child who has not reached 16
22
years; and
23
(ii) the authorised person is a parent or guardian of the
24
depicted person; or
25
(c) both:
26
(i) the depicted person is in a mental or physical condition
27
(whether temporary or permanent) that makes the
28
depicted person incapable of managing the depicted
29
person's affairs; and
30
(ii) the authorised person is a parent or guardian of the
31
depicted person.
32
Part 3
Complaints, objections and investigations
Division 3
Complaints about, and objections to, intimate images
Section 33
34
Online Safety Bill 2021
No. , 2021
(4) The authorised person must make a declaration to the
1
Commissioner to the effect that the authorised person is entitled to
2
make the complaint on behalf of the depicted person.
3
(5) If the authorised person is not able to identify the person who
4
allegedly contravened section 75, the authorised person must make
5
a statement to the Commissioner to that effect.
6
33 Objection notice
7
Objection notice given by a person depicted in an intimate image
8
(1) If a person (the
depicted person
) has reason to believe that:
9
(a) an intimate image of the depicted person is, or has been,
10
provided on:
11
(i) a social media service; or
12
(ii) a relevant electronic service; or
13
(iii) a designated internet service; and
14
(b) the provision of the intimate image on the service is not an
15
exempt provision of the intimate image; and
16
(c) any of the following conditions is satisfied:
17
(i) the depicted person is ordinarily resident in Australia;
18
(ii) if the intimate image was posted on the service by an
19
end-user of the service--the end-user is ordinarily
20
resident in Australia;
21
(iii) the intimate image is hosted in Australia by a hosting
22
service;
23
the depicted person may give the Commissioner a notice (an
24
objection notice
) objecting to the provision of the intimate image
25
on the service.
26
(2) The depicted person may give the objection notice even if the
27
depicted person previously consented to the provision of the
28
intimate image on the service.
29
Objection notice given on behalf of a person depicted in an
30
intimate image
31
(3) If a person (the
authorised person
) has reason to believe that:
32
Complaints, objections and investigations
Part 3
Complaints about, and objections to, intimate images
Division 3
Section 33
No. , 2021
Online Safety Bill 2021
35
(a) an intimate image of another person (the
depicted person
) is,
1
or has been, provided on:
2
(i) a social media service; or
3
(ii) a relevant electronic service; or
4
(iii) a designated internet service; and
5
(b) the provision of the intimate image on the service is not an
6
exempt provision of the intimate image; and
7
(c) any of the following conditions is satisfied:
8
(i) the depicted person is ordinarily resident in Australia;
9
(ii) if the intimate image was posted on the service by an
10
end-user of the service--the end-user is ordinarily
11
resident in Australia;
12
(iii) the intimate image is hosted in Australia by a hosting
13
service;
14
the authorised person may, on behalf of the depicted person, give
15
the Commissioner a notice (an
objection notice
) objecting to the
16
provision of the intimate image on the service, so long as:
17
(d) the depicted person has authorised the authorised person to
18
give the objection notice; or
19
(e) both:
20
(i) the depicted person is a child who has not reached 16
21
years; and
22
(ii) the authorised person is a parent or guardian of the
23
depicted person; or
24
(f) both:
25
(i) the depicted person is in a mental or physical condition
26
(whether temporary or permanent) that makes the
27
depicted person incapable of managing the depicted
28
person's affairs; and
29
(ii) the authorised person is a parent or guardian of the
30
depicted person.
31
(4) The authorised person must make a declaration to the
32
Commissioner to the effect that the authorised person is entitled to
33
give the objection notice on behalf of the depicted person.
34
Part 3
Complaints, objections and investigations
Division 3
Complaints about, and objections to, intimate images
Section 34
36
Online Safety Bill 2021
No. , 2021
(5) The authorised person may give the objection notice even if the
1
depicted person previously consented to the provision of the
2
intimate image on the service.
3
34 Investigation of complaints
4
(1) The Commissioner may investigate a complaint made to the
5
Commissioner under section 32.
6
(2) An investigation under this section is to be conducted as the
7
Commissioner thinks fit.
8
(3) The Commissioner may, for the purposes of an investigation,
9
obtain information from such persons, and make such inquiries, as
10
the Commissioner thinks fit.
11
(4) Subsections (1), (2) and (3) have effect subject to Part 14 (which
12
confers certain investigative powers on the Commissioner).
13
Termination of investigation
14
(5) The Commissioner may terminate an investigation under this
15
section.
16
35 Commissioner's response to objection notices
17
If an objection notice is given to the Commissioner under
18
section 33 in relation to an intimate image, the Commissioner may
19
consider whether to give a removal notice in relation to the
20
intimate image.
21
Complaints, objections and investigations
Part 3
Complaints about cyber-abuse material targeted at an Australian adult
Division 4
Section 36
No. , 2021
Online Safety Bill 2021
37
Division 4--Complaints about cyber-abuse material
1
targeted at an Australian adult
2
36 Complaints about cyber-abuse material
3
Complaint made by an Australian adult
4
(1) If an Australian adult has reason to believe that the adult was or is
5
the target of cyber-abuse material that has been, or is being,
6
provided on:
7
(a) a particular social media service; or
8
(b) a particular relevant electronic service; or
9
(c) a particular designated internet service;
10
the adult may make a complaint to the Commissioner about the
11
matter.
12
Complaint made on behalf of an Australian adult
13
(2) If:
14
(a) a person (the
responsible person
) has reason to believe that
15
cyber-abuse material targeted at an Australian adult has been,
16
or is being, provided on:
17
(i) a particular social media service; or
18
(ii) a particular relevant electronic service; or
19
(iii) a particular designated internet service; and
20
(b) the adult has authorised the responsible person to make a
21
complaint about the matter;
22
the responsible person may, on behalf of the adult, make a
23
complaint to the Commissioner about the matter.
24
Complaint about material that was provided on a service
25
(3) If:
26
(a) a complaint made by a person under this section concerns
27
material that has been, or is being, provided on:
28
(i) a social media service; or
29
(ii) a relevant electronic service; or
30
Part 3
Complaints, objections and investigations
Division 4
Complaints about cyber-abuse material targeted at an Australian adult
Section 37
38
Online Safety Bill 2021
No. , 2021
(iii) a designated internet service; and
1
(b) the person wants the Commissioner to give the provider of
2
the service a removal notice under section 88 requiring the
3
provider to remove the material from the service;
4
the complaint under this section must be accompanied by evidence
5
that the material was the subject of a complaint that was previously
6
made to the provider of the service.
7
(4) For the purposes of subsection (3), evidence must be in a form
8
required by the Commissioner.
9
(5) If:
10
(a) a social media service; or
11
(b) a relevant electronic service; or
12
(c) a designated internet service;
13
issues a receipt or complaint number to a complainant as part of its
14
ordinary business processes, the Commissioner may require
15
evidence to be in the form of the receipt or complaint number.
16
(6) If:
17
(a) a social media service; or
18
(b) a relevant electronic service; or
19
(c) a designated internet service;
20
does not issue a receipt or complaint number to a complainant as
21
part of its ordinary business processes, the Commissioner may
22
require evidence to be:
23
(d) in the form of a screen shot; or
24
(e) in the form of a statutory declaration; or
25
(f) in such other form as the Commissioner specifies.
26
(7) Subsections (5) and (6) do not limit subsection (4).
27
(8) A requirement under subsection (4), (5) or (6) is not a legislative
28
instrument.
29
37 Investigation of complaints
30
(1) The Commissioner may investigate a complaint made under
31
section 36.
32
Complaints, objections and investigations
Part 3
Complaints about cyber-abuse material targeted at an Australian adult
Division 4
Section 37
No. , 2021
Online Safety Bill 2021
39
(2) An investigation under this section is to be conducted as the
1
Commissioner thinks fit.
2
(3) The Commissioner may, for the purposes of an investigation,
3
obtain information from such persons, and make such inquiries, as
4
the Commissioner thinks fit.
5
(4) Subsections (1), (2) and (3) have effect subject to Part 14 (which
6
confers certain investigative powers on the Commissioner).
7
Termination of investigation
8
(5) The Commissioner may terminate an investigation under this
9
section.
10
Part 3
Complaints, objections and investigations
Division 5
Complaints relating to the online content scheme
Section 38
40
Online Safety Bill 2021
No. , 2021
Division 5--Complaints relating to the online content
1
scheme
2
38 Complaints about class 1 material or class 2 material
3
(1) If a person has reason to believe that end-users in Australia can
4
access:
5
(a) class 1 material that is provided on:
6
(i) a particular social media service; or
7
(ii) a particular relevant electronic service; or
8
(iii) a particular designated internet service; or
9
(b) class 2 material that is covered by paragraph 107(1)(a), (b),
10
(c), (d) or (e) and provided on:
11
(i) a particular social media service; or
12
(ii) a particular relevant electronic service; or
13
(iii) a particular designated internet service;
14
the person may make a complaint to the Commissioner about the
15
matter.
16
(2) If a person has reason to believe that:
17
(a) end-users in Australia can access class 2 material that is
18
covered by paragraph 107(1)(f), (g), (h), (i), (j), (k) or (l) and
19
provided on:
20
(i) a particular social media service; or
21
(ii) a particular relevant electronic service; or
22
(iii) a particular designated internet service; and
23
(b) access to the material is not subject to a restricted access
24
system;
25
the person may make a complaint to the Commissioner about the
26
matter.
27
39 Complaints relating to breach of a service provider rule etc.
28
If a person (the
first person
) has reason to believe that another
29
person has:
30
Complaints, objections and investigations
Part 3
Complaints relating to the online content scheme
Division 5
Section 40
No. , 2021
Online Safety Bill 2021
41
(a) breached a service provider rule that applies to the other
1
person; or
2
(b) breached a civil penalty provision of Part 9 (which deals with
3
the online content scheme);
4
the first person may make a complaint to the Commissioner about
5
the matter.
6
40 Complaints relating to breach of an industry code etc.
7
If a person has reason to believe that a participant in the online
8
industry (within the meaning of Division 7 of Part 9) has breached:
9
(a) a code registered under that Division that is applicable to the
10
participant; or
11
(b) an industry standard registered under that Division that is
12
applicable to the participant;
13
the person may make a complaint to the Commissioner about the
14
matter.
15
41 Residency etc. of complainant
16
A person is not entitled to make a complaint under this Division
17
unless the person is:
18
(a) an individual who resides in Australia; or
19
(b) a body corporate that carries on activities in Australia; or
20
(c) the Commonwealth, a State or a Territory.
21
42 Commissioner may investigate matters
22
(1) The Commissioner may, on the Commissioner's own initiative or
23
in response to a complaint made under section 38, 39 or 40,
24
investigate any of the following matters if the Commissioner thinks
25
that it is desirable to do so:
26
(a) whether end-users in Australia can access class 1 material
27
that is provided on:
28
(i) a social media service; or
29
(ii) a relevant electronic service; or
30
(iii) a designated internet service;
31
Part 3
Complaints, objections and investigations
Division 5
Complaints relating to the online content scheme
Section 42
42
Online Safety Bill 2021
No. , 2021
(b) whether end-users in Australia can access class 2 material
1
that is covered by paragraph 107(1)(a), (b), (c), (d) or (e) and
2
provided on:
3
(i) a social media service; or
4
(ii) a relevant electronic service; or
5
(iii) a designated internet service;
6
(c) whether end-users in Australia can access class 2 material
7
that is covered by paragraph 107(1)(f), (g), (h), (i), (j), (k) or
8
(l) and provided on:
9
(i) a social media service; or
10
(ii) a relevant electronic service; or
11
(iii) a designated internet service;
12
and, if so, whether access to the material is subject to a
13
restricted access system;
14
(d) whether a person has breached a service provider rule that
15
applies to the person;
16
(e) whether a person has breached a civil penalty provision of
17
Part 9 (which deals with the online content scheme);
18
(f) whether a participant in the online industry (within the
19
meaning of Division 7 of Part 9) has breached a code
20
registered under that Division that is applicable to the
21
participant;
22
(g) whether a participant in the online industry (within the
23
meaning of Division 7 of Part 9) has breached an industry
24
standard registered under that Division that is applicable to
25
the participant.
26
(2) An investigation under this section is to be conducted as the
27
Commissioner thinks fit.
28
(3) The Commissioner may, for the purposes of an investigation,
29
obtain information from such persons, and make such inquiries, as
30
the Commissioner thinks fit.
31
(4) This section has effect subject to Part 14 (which confers certain
32
investigative powers on the Commissioner).
33
Complaints, objections and investigations
Part 3
Complaints relating to the online content scheme
Division 5
Section 43
No. , 2021
Online Safety Bill 2021
43
43 Commissioner may refuse to investigate certain matters
1
(1) If:
2
(a) a person has made a complaint under section 38, 39 or 40;
3
and
4
(b) the complaint is about a particular matter; and
5
(c) the person could have made a complaint about the matter
6
under:
7
(i) an industry code registered under Division 7 of Part 9);
8
or
9
(ii) an industry standard determined under Division 7 of
10
Part 9);
11
the Commissioner may refuse to investigate the matter.
12
(2) Subsection (1) does not, by implication, limit the circumstances in
13
which the Commissioner may refuse to investigate a matter.
14
Part 4
Basic online safety expectations
Division 1
Introduction
Section 44
44
Online Safety Bill 2021
No. , 2021
Part 4--Basic online safety expectations
1
Division 1--Introduction
2
44 Simplified outline of this Part
3
•
The Minister may determine basic online safety expectations
4
for social media services, relevant electronic services and
5
designated internet services.
6
•
The provider of a social media service, relevant electronic
7
service or designated internet service may be required to give
8
the Commissioner reports about compliance with the
9
applicable basic online safety expectations.
10
Basic online safety expectations
Part 4
Basic online safety expectations
Division 2
Section 45
No. , 2021
Online Safety Bill 2021
45
Division 2--Basic online safety expectations
1
45 Basic online safety expectations
2
Social media service
3
(1) The Minister may, by legislative instrument, determine that the
4
basic online safety expectations for a social media service are the
5
expectations specified in the determination.
6
Relevant electronic service
7
(2) The Minister may, by legislative instrument, determine that the
8
basic online safety expectations for each relevant electronic service
9
included in a class of relevant electronic services specified in the
10
determination are the expectations specified in the determination.
11
Designated internet service
12
(3) The Minister may, by legislative instrument, determine that the
13
basic online safety expectations for each designated internet
14
service included in a class of designated internet services specified
15
in the determination are the expectations specified in the
16
determination.
17
Determination does not impose a legally enforceable duty
18
(4) A determination under this section does not impose a duty that is
19
enforceable by proceedings in a court.
20
46 Core expectations
21
(1) A determination under section 45 must specify each of the
22
following expectations:
23
(a) the expectation that the provider of the service will take
24
reasonable steps to ensure that end-users are able to use the
25
service in a safe manner;
26
(b) the expectation that, in determining what are such reasonable
27
steps, the provider will consult the Commissioner;
28
Part 4
Basic online safety expectations
Division 2
Basic online safety expectations
Section 46
46
Online Safety Bill 2021
No. , 2021
(c) the expectation that the provider of the service will take
1
reasonable steps to minimise the extent to which the
2
following material is provided on the service:
3
(i) cyber-bullying material targeted at an Australian child;
4
(ii) cyber-abuse material targeted at an Australian adult;
5
(iii) a non-consensual intimate image of a person;
6
(iv) class 1 material;
7
(v) material that promotes abhorrent violent conduct;
8
(vi) material that incites abhorrent violent conduct;
9
(vii) material that instructs in abhorrent violent conduct;
10
(viii) material that depicts abhorrent violent conduct;
11
(d) the expectation that the provider of the service will take
12
reasonable steps to ensure that technological or other
13
measures are in effect to prevent access by children to class 2
14
material provided on the service;
15
(e) the expectation that the provider of the service will ensure
16
that the service has clear and readily identifiable mechanisms
17
that enable end-users to report, and make complaints about,
18
any of the following material provided on the service:
19
(i) cyber-bullying material targeted at an Australian child;
20
(ii) cyber-abuse material targeted at an Australian adult;
21
(iii) a non-consensual intimate image of a person;
22
(iv) class 1 material;
23
(v) class 2 material;
24
(vi) material that promotes abhorrent violent conduct;
25
(vii) material that incites abhorrent violent conduct;
26
(viii) material that instructs in abhorrent violent conduct;
27
(ix) material that depicts abhorrent violent conduct;
28
(f) the expectation that the provider of the service will ensure
29
that the service has clear and readily identifiable mechanisms
30
that enable end-users to report, and make complaints about,
31
breaches of the service's terms of use;
32
(g) the expectation that, if the Commissioner, by written notice
33
given to the provider of the service, requests the provider to
34
give the Commissioner a statement that sets out the number
35
of complaints made to the provider during a specified period
36
Basic online safety expectations
Part 4
Basic online safety expectations
Division 2
Section 47
No. , 2021
Online Safety Bill 2021
47
(not shorter than 6 months) about breaches of the service's
1
terms of use, the provider will comply with the request
2
within 30 days after the notice of request is given;
3
(h) the expectation that, if the Commissioner, by written notice
4
given to the provider of the service, requests the provider to
5
give the Commissioner a statement that sets out, for each
6
removal notice given to the provider during a specified
7
period (not shorter than 6 months), how long it took the
8
provider to comply with the removal notice, the provider will
9
comply with the request within 30 days after the notice of
10
request is given;
11
(i) the expectation that, if the Commissioner, by written notice
12
given to the provider of the service, requests the provider to
13
give the Commissioner specified information relating to the
14
measures taken by the provider to ensure that end-users are
15
able to use the service in a safe manner, the provider will
16
comply with the request within 30 days after the notice of
17
request is given.
18
Note 1:
For
non-consensual intimate image of a person
, see section 16.
19
Note 2:
Section 104 provides for exemptions for the following material:
20
(a)
material that promotes abhorrent violent conduct;
21
(b)
material that incites abhorrent violent conduct;
22
(c)
material that instructs in abhorrent violent conduct;
23
(d)
material that depicts abhorrent violent conduct.
24
(2) Subsection (1) does not limit the expectations that may be specified
25
in a determination under section 45.
26
47 Consultation
27
(1) Before making or varying a determination under section 45, the
28
Minister must:
29
(a) make a copy of the draft available on the Department's
30
website; and
31
(b) publish a notice on the Department's website:
32
(i) stating that the Minister has prepared a draft of the
33
determination or variation; and
34
Part 4
Basic online safety expectations
Division 2
Basic online safety expectations
Section 48
48
Online Safety Bill 2021
No. , 2021
(ii) inviting interested persons to give written comments
1
about the draft to the Minister within the period
2
specified in the notice.
3
(2) The period specified in the notice must run for at least 30 days
4
after the publication of the notice.
5
(3) Subsection (1) does not apply to a variation if the variation is of a
6
minor nature.
7
(4) If interested persons have given comments in accordance with a
8
notice under subsection (1), the Minister must have due regard to
9
those comments in making or varying the determination.
10
48 Service provider notifications
11
Scope
12
(1) This section applies to the following services:
13
(a) a social media service, if there are basic online safety
14
expectations for the service;
15
(b) a relevant electronic service, if there are basic online safety
16
expectations for the service;
17
(c) a designated internet service, if there are basic online safety
18
expectations for the service.
19
Statement
20
(2) If the Commissioner is satisfied that the provider of a service has
21
contravened one or more basic online safety expectations for the
22
service, the Commissioner may:
23
(a) prepare a statement to that effect; and
24
(b) give a copy of the statement to the provider of the service;
25
and
26
(c) if the Commissioner considers that it is appropriate to publish
27
the statement--publish the statement on the Commissioner's
28
website.
29
Basic online safety expectations
Part 4
Basic online safety expectations
Division 2
Section 48
No. , 2021
Online Safety Bill 2021
49
(3) If the Commissioner is satisfied that the provider of a service has
1
complied with the basic online safety expectations for the service
2
at all times during a particular period, the Commissioner may:
3
(a) prepare a statement to that effect; and
4
(b) give a copy of the statement to the provider of the service;
5
and
6
(c) if the Commissioner considers that it is appropriate to publish
7
the statement--publish the statement on the Commissioner's
8
website.
9
Part 4
Basic online safety expectations
Division 3
Reporting
Section 49
50
Online Safety Bill 2021
No. , 2021
Division 3--Reporting
1
Subdivision A--Periodic reporting about compliance with basic
2
online safety expectations
3
49 Periodic reporting notice
4
Scope
5
(1) This section applies to the following services:
6
(a) a social media service, if there are basic online safety
7
expectations for the service;
8
(b) a relevant electronic service, if there are basic online safety
9
expectations for the service;
10
(c) a designated internet service, if there are basic online safety
11
expectations for the service.
12
Notice
13
(2) The Commissioner may, by written notice given to the provider of
14
the service, require the provider to:
15
(a) do whichever of the following is specified in the notice:
16
(i) prepare periodic reports about the extent to which the
17
provider complied with the applicable basic online
18
safety expectations during such regular intervals as are
19
specified in the notice;
20
(ii) prepare periodic reports about the extent to which the
21
provider complied with one or more specified
22
applicable basic online safety expectations during such
23
regular intervals as are specified in the notice; and
24
(b) prepare those periodic reports in the manner and form
25
specified in the notice; and
26
(c) give each of those periodic reports to the Commissioner:
27
(i) within the period ascertained in accordance with the
28
notice in relation to the periodic report concerned; or
29
Basic online safety expectations
Part 4
Reporting
Division 3
Section 50
No. , 2021
Online Safety Bill 2021
51
(ii) if the Commissioner allows a longer period in relation
1
to the periodic report concerned--within that longer
2
period.
3
(3) An interval specified under subparagraph (2)(a)(i) or (ii):
4
(a) must not be shorter than 6 months; and
5
(b) must not be longer than 24 months.
6
(4) A period ascertained in accordance with the notice as mentioned in
7
subparagraph (2)(c)(i) must not be shorter than 28 days after the
8
end of the interval to which the periodic report relates.
9
(5) In deciding whether to give a notice under subsection (2) to the
10
provider of a service, the Commissioner must have regard to the
11
following:
12
(a) the number of occasions during the previous 12 months on
13
which complaints about material provided on the service
14
were made to the Commissioner under this Act;
15
(b) whether the provider has previously contravened a civil
16
penalty provision of this Division;
17
(c) whether there are deficiencies in the provider's practices, so
18
far as those practices relate to the capacity of end-users to use
19
the service in a safe manner;
20
(d) whether there are deficiencies in the service's terms of use,
21
so far as they relate to the capacity of end-users to use the
22
service in a safe manner;
23
(e) whether the provider has agreed to give the Secretary regular
24
reports relating to the capacity of end-users to use the service
25
in a safe manner;
26
(f) such other matters (if any) as the Commissioner considers
27
relevant.
28
50 Compliance with notice
29
A person must comply with a notice under subsection 49(2) to the
30
extent that the person is capable of doing so.
31
Civil penalty:
500 penalty units.
32
Part 4
Basic online safety expectations
Division 3
Reporting
Section 51
52
Online Safety Bill 2021
No. , 2021
51 Formal warning
1
The Commissioner may issue a formal warning if a person
2
contravenes section 50.
3
52 Periodic reporting determination
4
Scope
5
(1) This section applies to the following services:
6
(a) a social media service, if there are basic online safety
7
expectations for the service;
8
(b) a relevant electronic service, if there are basic online safety
9
expectations for the service;
10
(c) a designated internet service, if there are basic online safety
11
expectations for the service.
12
Determination
13
(2) The Commissioner may, by legislative instrument, determine that
14
each provider of a service included in a specified class of services
15
is required to:
16
(a) do whichever of the following is specified in the
17
determination:
18
(i) prepare periodic reports about the extent to which the
19
provider complied with the applicable basic online
20
safety expectations during such regular intervals as are
21
specified in the determination;
22
(ii) prepare periodic reports about the extent to which the
23
provider complied with one or more specified
24
applicable basic online safety expectations during such
25
regular intervals as are specified in the determination;
26
and
27
(b) prepare those periodic reports in the manner and form
28
specified in the determination; and
29
(c) give each of those periodic reports to the Commissioner:
30
(i) within the period ascertained in accordance with the
31
determination in relation to the periodic report
32
concerned; or
33
Basic online safety expectations
Part 4
Reporting
Division 3
Section 53
No. , 2021
Online Safety Bill 2021
53
(ii) if the Commissioner allows a longer period in relation
1
to the periodic report concerned--within that longer
2
period.
3
(3) An interval specified under subparagraph (2)(a)(i) or (ii):
4
(a) must not be shorter than 6 months; and
5
(b) must not be longer than 24 months.
6
(4) A period ascertained in accordance with the determination as
7
mentioned in subparagraph (2)(c)(i) must not be shorter than 28
8
days after the end of the interval to which the periodic report
9
relates.
10
53 Compliance with determination
11
A person must comply with a determination under subsection 52(2)
12
to the extent that the person is capable of doing so.
13
Civil penalty:
500 penalty units.
14
54 Formal warning
15
The Commissioner may issue a formal warning if a person
16
contravenes section 53.
17
55 Service provider notifications
18
(1) If:
19
(a) the Commissioner gave a notice under subsection 49(2) to
20
the provider of:
21
(i) a social media service; or
22
(ii) a relevant electronic service; or
23
(iii) a designated internet service; and
24
(b) the provider did not comply with the notice;
25
the Commissioner may:
26
(c) prepare a statement to that effect; and
27
(d) publish the statement on the Commissioner's website; and
28
(e) give a copy of the statement to the provider of the service.
29
Part 4
Basic online safety expectations
Division 3
Reporting
Section 56
54
Online Safety Bill 2021
No. , 2021
(2) If:
1
(a) a determination under subsection 52(2) applies to the
2
provider of:
3
(i) a social media service; or
4
(ii) a relevant electronic service; or
5
(iii) a designated internet service; and
6
(b) the provider did not comply with the determination;
7
the Commissioner may:
8
(c) prepare a statement to that effect; and
9
(d) publish the statement on the Commissioner's website; and
10
(e) give a copy of the statement to the provider of the service.
11
Subdivision B--Non-periodic reporting about compliance with
12
basic online safety expectations
13
56 Non-periodic reporting notice
14
Scope
15
(1) This section applies to the following services:
16
(a) a social media service, if there are basic online safety
17
expectations for the service;
18
(b) a relevant electronic service, if there are basic online safety
19
expectations for the service;
20
(c) a designated internet service, if there are basic online safety
21
expectations for the service.
22
Notice
23
(2) The Commissioner may, by written notice given to the provider of
24
the service, require the provider to:
25
(a) do whichever of the following is specified in the notice:
26
(i) prepare a report about the extent to which the provider
27
complied with the applicable basic online safety
28
expectations during the period specified in the notice;
29
(ii) prepare a report about the extent to which the provider
30
complied with one or more specified applicable basic
31
Basic online safety expectations
Part 4
Reporting
Division 3
Section 56
No. , 2021
Online Safety Bill 2021
55
online safety expectations during the period specified in
1
the notice; and
2
(b) prepare the report in the manner and form specified in the
3
notice; and
4
(c) give the report to the Commissioner:
5
(i) within the period specified in the notice; or
6
(ii) if the Commissioner allows a longer period--within that
7
longer period.
8
(3) The period specified under subparagraph (2)(a)(i) or (ii):
9
(a) must not be shorter than 6 months; and
10
(b) must not be longer than 24 months.
11
(4) The period specified in subparagraph (2)(c)(i) must not be shorter
12
than 28 days after the notice is given.
13
(5) In deciding whether to give a notice under subsection (2) to the
14
provider of a service, the Commissioner must have regard to the
15
following:
16
(a) the number of occasions during the previous 12 months on
17
which complaints about material provided on the service
18
were made to the Commissioner under this Act;
19
(b) whether the provider has previously contravened a civil
20
penalty provision of this Division;
21
(c) whether there are deficiencies in the provider's practices, so
22
far as those practices relate to the capacity of end-users to use
23
the service in a safe manner;
24
(d) whether there are deficiencies in service's terms of use, so far
25
as they relate to the capacity of end-users to use the service in
26
a safe manner;
27
(e) whether the provider has agreed to give the Secretary regular
28
reports relating to the capacity of end-users to use the service
29
in a safe manner;
30
(f) such other matters (if any) as the Commissioner considers
31
relevant.
32
Part 4
Basic online safety expectations
Division 3
Reporting
Section 57
56
Online Safety Bill 2021
No. , 2021
57 Compliance with notice
1
A person must comply with a notice under subsection 56(2) to the
2
extent that the person is capable of doing so.
3
Civil penalty:
500 penalty units.
4
58 Formal warning
5
The Commissioner may issue a formal warning if a person
6
contravenes section 57.
7
59 Non-periodic reporting determination
8
Scope
9
(1) This section applies to the following services:
10
(a) a social media service, if there are basic online safety
11
expectations for the service;
12
(b) a relevant electronic service, if there are basic online safety
13
expectations for the service;
14
(c) a designated internet service, if there are basic online safety
15
expectations for the service.
16
Determination
17
(2) The Commissioner may, by legislative instrument, determine that
18
each provider of a service included in a specified class of services
19
is required to:
20
(a) do whichever of the following is specified in the
21
determination:
22
(i) prepare a report about the extent to which the provider
23
complied with the applicable basic online safety
24
expectations during the period specified in the
25
determination;
26
(ii) prepare a report about the extent to which the provider
27
complied with one or more specified applicable basic
28
online safety expectations during the period specified in
29
the determination; and
30
Basic online safety expectations
Part 4
Reporting
Division 3
Section 60
No. , 2021
Online Safety Bill 2021
57
(b) prepare the report in the manner and form specified in the
1
determination; and
2
(c) give the report to the Commissioner:
3
(i) within the period specified in the determination; or
4
(ii) if the Commissioner allows a longer period--within that
5
longer period.
6
(3) The period specified under subparagraph (2)(a)(i) or (ii):
7
(a) must not be shorter than 6 months; and
8
(b) must not be longer than 24 months.
9
(4) The period specified in subparagraph (2)(c)(i) must not be shorter
10
than 28 days after the determination is made.
11
60 Compliance with determination
12
A person must comply with a determination under subsection 59(2)
13
to the extent that the person is capable of doing so.
14
Civil penalty:
500 penalty units.
15
61 Formal warning
16
The Commissioner may issue a formal warning if a person
17
contravenes section 60.
18
62 Service provider notifications
19
(1) If:
20
(a) the Commissioner gave a notice under subsection 56(2) to
21
the provider of:
22
(i) a social media service; or
23
(ii) a relevant electronic service; or
24
(iii) a designated internet service; and
25
(b) the provider did not comply with the notice;
26
the Commissioner may:
27
(c) prepare a statement to that effect; and
28
(d) publish the statement on the Commissioner's website; and
29
Part 4
Basic online safety expectations
Division 3
Reporting
Section 63
58
Online Safety Bill 2021
No. , 2021
(e) give a copy of the statement to the provider of the service.
1
(2) If:
2
(a) a determination under subsection 59(2) applies to the
3
provider of:
4
(i) a social media service; or
5
(ii) a relevant electronic service; or
6
(iii) a designated internet service; and
7
(b) the provider did not comply with the determination;
8
the Commissioner may:
9
(c) prepare a statement to that effect; and
10
(d) publish the statement on the Commissioner's website; and
11
(e) give a copy of the statement to the provider of the service.
12
Subdivision C--Self-incrimination
13
63 Self-incrimination
14
(1) A person is not excused from giving a report under this Division on
15
the ground that the report might tend to incriminate the person.
16
(2) However, in the case of an individual:
17
(a) the report; or
18
(b) giving the report; or
19
(c) any information, document or thing obtained as a direct or
20
indirect consequence of giving the report;
21
is not admissible in evidence against the individual:
22
(d) in civil proceedings for the recovery of a penalty (other than
23
proceedings for the recovery of a penalty under this
24
Division); or
25
(e) in criminal proceedings (other than proceedings for an
26
offence against section 137.1 or 137.2 of the
Criminal Code
27
that relates to this Division).
28
(3) If, at general law, an individual would otherwise be able to claim
29
the privilege against self-exposure to a penalty (other than a
30
penalty for an offence) in relation to giving a report under this
31
Basic online safety expectations
Part 4
Reporting
Division 3
Section 63
No. , 2021
Online Safety Bill 2021
59
Division, the individual is not excused from giving the report under
1
this Division on that ground.
2
Note:
A body corporate is not entitled to claim the privilege against
3
self-exposure to a penalty.
4
Part 5
Cyber-bullying material targeted at an Australian child
Section 64
60
Online Safety Bill 2021
No. , 2021
Part 5--Cyber-bullying material targeted at an
1
Australian child
2
3
64 Simplified outline of this Part
4
•
A social media service, relevant electronic service or
5
designated internet service may be given a notice (a
removal
6
notice
) requiring the removal from the service of
7
cyber-bullying material targeted at an Australian child.
8
•
A hosting service provider who hosts cyber-bullying material
9
targeted at an Australian child may be given a notice (a
10
removal notice
) requiring the provider to cease hosting the
11
material.
12
•
A person who posts cyber-bullying material targeted at an
13
Australian child may be given a notice (an
end-user notice
)
14
requiring the person to do any or all of the following:
15
(a)
take all reasonable steps to ensure the removal of the
16
material;
17
(b)
refrain from posting any cyber-bullying material for
18
which the child is the target;
19
(c)
apologise for posting the material.
20
65 Removal notice given to the provider of a social media service,
21
relevant electronic service or designated internet service
22
(1) If:
23
(a) material is, or has been, provided on:
24
(i) a social media service; or
25
(ii) a relevant electronic service; or
26
(iii) a designated internet service; and
27
(b) the material was the subject of a complaint that was made to
28
the provider of the service; and
29
Cyber-bullying material targeted at an Australian child
Part 5
Section 66
No. , 2021
Online Safety Bill 2021
61
(c) the material was not removed from the service within:
1
(i) 48 hours after the complaint was made; or
2
(ii) such longer period as the Commissioner allows; and
3
(d) a complaint has been made to the Commissioner under
4
section 30 about the material; and
5
(e) the Commissioner is satisfied that the material is or was
6
cyber-bullying material targeted at an Australian child;
7
the Commissioner may give the provider of the service a written
8
notice (a
removal notice
) requiring the provider to:
9
(f) remove the material from the service; and
10
(g) do so within:
11
(i) 24 hours after the removal notice was given to the
12
provider; or
13
(ii) such longer period as the Commissioner allows.
14
Note:
For enforcement, see:
15
(a) sections 67 and 162 (civil penalty); and
16
(b) section 163 (infringement notices); and
17
(c) section 164 (enforceable undertakings); and
18
(d) section 165 (injunctions).
19
(2) So far as is reasonably practicable, the material must be identified
20
in the removal notice in a way that is sufficient to enable the
21
provider of the service to comply with the notice.
22
Notice of refusal to give a removal notice
23
(3) If the Commissioner decides to refuse to give a removal notice
24
under subsection (1), the Commissioner must give written notice of
25
the refusal to the person who made a section 30 complaint about
26
the material concerned.
27
66 Removal notice given to a hosting service provider
28
(1) If:
29
(a) material is, or has been, provided on:
30
(i) a social media service; or
31
(ii) a relevant electronic service; or
32
(iii) a designated internet service; and
33
Part 5
Cyber-bullying material targeted at an Australian child
Section 67
62
Online Safety Bill 2021
No. , 2021
(b) the material was the subject of a complaint that was made to
1
the provider of the service; and
2
(c) the material was not removed from the service within:
3
(i) 48 hours after the complaint was made; or
4
(ii) such longer period as the Commissioner allows; and
5
(d) a complaint has been made to the Commissioner under
6
section 30 about the material; and
7
(e) the Commissioner is satisfied that the material is or was
8
cyber-bullying material targeted at an Australian child; and
9
(f) the material is hosted by a hosting service provider;
10
the Commissioner may give the hosting service provider a written
11
notice, to be known as a
removal notice
, requiring the provider to:
12
(g) take all reasonable steps to cease hosting the material; and
13
(h) do so within:
14
(i) 24 hours after the notice was given to the provider; or
15
(ii) such longer period as the Commissioner allows.
16
(2) So far as is reasonably practicable, the material must be identified
17
in the removal notice in a way that is sufficient to enable the
18
hosting service provider to comply with the notice.
19
Notice of refusal to give a removal notice
20
(3) If the Commissioner decides to refuse to give a removal notice
21
under subsection (1), the Commissioner must give written notice of
22
the refusal to the person who made a section 30 complaint about
23
the material concerned.
24
67 Compliance with removal notice
25
A person must comply with a requirement under a removal notice
26
given under section 65 or 66 to the extent that the person is capable
27
of doing so.
28
Civil penalty:
500 penalty units.
29
Cyber-bullying material targeted at an Australian child
Part 5
Section 68
No. , 2021
Online Safety Bill 2021
63
68 Formal warning
1
The Commissioner may issue a formal warning if a person
2
contravenes section 67.
3
70 End-user notice
4
(1) If:
5
(a) material is, or has been, provided on:
6
(i) a social media service; or
7
(ii) a relevant electronic service; or
8
(iii) a designated internet service; and
9
(b) a complaint has been made to the Commissioner under
10
section 30 about the material; and
11
(c) the Commissioner is satisfied that the material is or was
12
cyber-bullying material targeted at an Australian child; and
13
(d) the material was posted on the service by a particular
14
end-user of the service;
15
the Commissioner may give the end-user a written notice (an
16
end-user notice
) requiring the end-user to do any or all of the
17
following:
18
(e) if the material is provided on the service--to:
19
(i) take all reasonable steps to ensure the removal of the
20
material from the service; and
21
(ii) do so within the period specified in the notice;
22
(f) in any case--to refrain from posting any cyber-bullying
23
material for which the child is the target;
24
(g) in any case--to:
25
(i) apologise to the child (or, if the child has become an
26
adult, to the adult) for posting the material; and
27
(ii) do so in the manner, and within the period, specified in
28
the notice.
29
(2) So far as is reasonably practicable, the material must be identified
30
in the end-user notice in a way that is sufficient to enable the
31
end-user to comply with the notice.
32
Part 5
Cyber-bullying material targeted at an Australian child
Section 71
64
Online Safety Bill 2021
No. , 2021
71 Compliance with end-user notice
1
A person must comply with a requirement under an end-user notice
2
to the extent that the person is capable of doing so.
3
Note:
For enforcement, see section 165 (injunctions).
4
72 Formal warning
5
The Commissioner may issue a formal warning if a person
6
contravenes section 71.
7
73 Service provider notifications
8
(1) If:
9
(a) material is provided on:
10
(i) a social media service; or
11
(ii) a relevant electronic service; or
12
(iii) a designated internet service; and
13
(b) the Commissioner is satisfied that the material is or was
14
cyber-bullying material targeted at an Australian child; and
15
(c) a complaint has been made to the Commissioner under
16
section 30 about the material;
17
the Commissioner may, with the consent of the complainant, give
18
the provider of the service a written notice that:
19
(d) identifies the material; and
20
(e) states the Commissioner is satisfied that the material is
21
cyber-bullying material targeted at an Australian child.
22
(2) If the Commissioner is satisfied that there were 2 or more
23
occasions during the previous 12 months on which:
24
(a) cyber-bullying material targeted at an Australian child is, or
25
has been, provided on:
26
(i) a social media service; or
27
(ii) a relevant electronic service; or
28
(iii) a designated internet service; and
29
(b) the provision of the material contravened the service's terms
30
of use;
31
the Commissioner may:
32
Cyber-bullying material targeted at an Australian child
Part 5
Section 73
No. , 2021
Online Safety Bill 2021
65
(c) prepare a statement to that effect; and
1
(d) publish the statement on the Commissioner's website; and
2
(e) give a copy of the statement to the provider of the service.
3
Part 6
Non-consensual sharing of intimate images
Division 1
Introduction
Section 74
66
Online Safety Bill 2021
No. , 2021
Part 6--Non-consensual sharing of intimate images
1
Division 1--Introduction
2
74 Simplified outline of this Part
3
•
A person who posts, or threatens to post, an intimate image
4
without the consent of the person depicted in the image may
5
be liable to a civil penalty.
6
•
The provider of a social media service, relevant electronic
7
service or designated internet service may be given a notice (a
8
removal notice
) requiring the provider to remove an intimate
9
image from the service.
10
•
An end-user of a social media service, relevant electronic
11
service or designated internet service who posts an intimate
12
image on the service may be given a notice (a
removal notice
)
13
requiring the end-user to remove the image from the service.
14
•
A hosting service provider who hosts an intimate image may
15
be given a notice (a
removal notice
) requiring the provider to
16
cease hosting the image.
17
Non-consensual sharing of intimate images
Part 6
Intimate images must not be posted without consent etc.
Division 2
Section 75
No. , 2021
Online Safety Bill 2021
67
Division 2--Intimate images must not be posted without
1
consent etc.
2
75 Posting an intimate image
3
(1) A person (the
first person
) who is an end-user of:
4
(a) a social media service; or
5
(b) a relevant electronic service; or
6
(c) a designated internet service;
7
must not post, or make a threat to post, an intimate image of
8
another person (the
second person
) on the service if:
9
(d) the first person is ordinarily resident in Australia; or
10
(e) the second person is ordinarily resident in Australia.
11
Civil penalty:
500 penalty units.
12
Consent
13
(2) Subsection (1) does not apply if the second person consented to the
14
posting of the intimate image by the first person.
15
Note:
In proceedings for a civil penalty order against a person for a
16
contravention of subsection (1), the person bears an evidential burden
17
in relation to the matter in this subsection (see section 96 of the
18
Regulatory Powers (Standard Provisions) Act 2014
)
.
19
Depiction of second person without attire of religious or cultural
20
significance
21
(3) Subsection (1) does not apply if:
22
(a) the intimate image is covered by subsection 15(4) because it
23
depicts, or appears to depict, the second person without
24
particular attire of religious or cultural significance; and
25
(b) the first person did not know that, because of the second
26
person's religious or cultural background, the second person
27
consistently wears that attire whenever the second person is
28
in public.
29
Note:
In proceedings for a civil penalty order against a person for a
30
contravention of subsection (1), the person bears an evidential burden
31
Part 6
Non-consensual sharing of intimate images
Division 2
Intimate images must not be posted without consent etc.
Section 76
68
Online Safety Bill 2021
No. , 2021
in relation to the matter in this subsection (see section 96 of the
1
Regulatory Powers (Standard Provisions) Act 2014
)
.
2
Exempt provision of the intimate image
3
(4) Subsection (1) does not apply if:
4
(a) in the case of a post of the intimate image--the resulting
5
provision of the intimate image on the service is an exempt
6
provision of the intimate image; or
7
(b) in the case of a threat to post the intimate image--assuming
8
that the threat had been carried out, the resulting provision of
9
the intimate image on the service would be an exempt
10
provision of the intimate image.
11
Note:
In proceedings for a civil penalty order against a person for a
12
contravention of subsection (1), the person bears an evidential burden
13
in relation to the matter in this subsection (see section 96 of the
14
Regulatory Powers (Standard Provisions) Act 2014
)
.
15
76 Formal warning
16
The Commissioner may issue a formal warning if a person
17
contravenes section 75.
18
Non-consensual sharing of intimate images
Part 6
Removal notices
Division 3
Section 77
No. , 2021
Online Safety Bill 2021
69
Division 3--Removal notices
1
77 Removal notice given to the provider of a social media service,
2
relevant electronic service or designated internet service
3
(1) If:
4
(a) an intimate image of a person is, or has been, provided on:
5
(i) a social media service; or
6
(ii) a relevant electronic service; or
7
(iii) a designated internet service; and
8
(b) the intimate image is the subject of:
9
(i) a complaint made to the Commissioner under
10
section 32; or
11
(ii) an objection notice given to the Commissioner under
12
section 33; and
13
(c) if subparagraph (b)(i) applies--the Commissioner is satisfied
14
that the person did not consent to the provision of the
15
intimate image on the service; and
16
(d) the provision of the intimate image on the service is not an
17
exempt provision of the intimate image;
18
the Commissioner may give the provider of the service a written
19
notice, to be known as a
removal notice
, requiring the provider to:
20
(e) take all reasonable steps to ensure the removal of the intimate
21
image from the service; and
22
(f) do so within:
23
(i) 24 hours after the notice was given to the provider; or
24
(ii) such longer period as the Commissioner allows.
25
(2) So far as is reasonably practicable, the intimate image must be
26
identified in the removal notice in a way that is sufficient to enable
27
the provider of the service to comply with the notice.
28
Notice of refusal to give a removal notice
29
(3) If the Commissioner decides to refuse to give a removal notice
30
under subsection (1), the Commissioner must give written notice of
31
the refusal to:
32
Part 6
Non-consensual sharing of intimate images
Division 3
Removal notices
Section 78
70
Online Safety Bill 2021
No. , 2021
(a) if subparagraph (1)(b)(i) applies--the person who made the
1
complaint mentioned in that subparagraph; or
2
(b) if subparagraph (1)(b)(ii) applies--the person who gave the
3
objection notice mentioned in that subparagraph.
4
78 Removal notice given to an end-user
5
(1) If:
6
(a) an intimate image of a person is, or has been, provided on:
7
(i) a social media service; or
8
(ii) a relevant electronic service; or
9
(iii) a designated internet service; and
10
(b) the intimate image was posted on the service by a particular
11
end-user of the service; and
12
(c) the intimate image is the subject of:
13
(i) a complaint made to the Commissioner under
14
section 32; or
15
(ii) an objection notice given to the Commissioner under
16
section 33; and
17
(d) if subparagraph (c)(i) applies--the Commissioner is satisfied
18
that the person did not consent to the provision of the
19
intimate image on the service; and
20
(e) the provision of the intimate image on the service is not an
21
exempt provision of the intimate image;
22
the Commissioner may give the end-user a written notice, to be
23
known as a
removal notice
, requiring the end-user to:
24
(f) take all reasonable steps to ensure the removal of the intimate
25
image from the service; and
26
(g) do so within:
27
(i) 24 hours after the notice was given to the end-user; or
28
(ii) such longer period as the Commissioner allows.
29
(2) So far as is reasonably practicable, the intimate image must be
30
identified in the removal notice in a way that is sufficient to enable
31
the end-user to comply with the notice.
32
Non-consensual sharing of intimate images
Part 6
Removal notices
Division 3
Section 79
No. , 2021
Online Safety Bill 2021
71
Notice of refusal to give a removal notice
1
(3) If the Commissioner decides to refuse to give a removal notice
2
under subsection (1), the Commissioner must give written notice of
3
the refusal to:
4
(a) if subparagraph (1)(c)(i) applies--the person who made the
5
complaint mentioned in that subparagraph; or
6
(b) if subparagraph (1)(c)(ii) applies--the person who gave the
7
objection notice mentioned in that subparagraph.
8
79 Removal notice given to a hosting service provider
9
(1) If:
10
(a) an intimate image of a person is, or has been, provided on:
11
(i) a social media service; or
12
(ii) a relevant electronic service; or
13
(iii) a designated internet service; and
14
(b) the intimate image is the subject of:
15
(i) a complaint made to the Commissioner under
16
section 32; or
17
(ii) an objection notice given to the Commissioner under
18
section 33; and
19
(c) if subparagraph (b)(i) applies--the Commissioner is satisfied
20
that the person did not consent to the provision of the
21
intimate image on the service; and
22
(d) the intimate image is hosted by a hosting service provider;
23
and
24
(e) the provision of the intimate image on the service is not an
25
exempt provision of the intimate image;
26
the Commissioner may give the hosting service provider a written
27
notice, to be known as a
removal notice
, requiring the provider to:
28
(f) take all reasonable steps to cease hosting the intimate image;
29
and
30
(g) do so within:
31
(i) 24 hours after the notice was given to the provider; or
32
(ii) such longer period as the Commissioner allows.
33
Part 6
Non-consensual sharing of intimate images
Division 3
Removal notices
Section 80
72
Online Safety Bill 2021
No. , 2021
(2) So far as is reasonably practicable, the intimate image must be
1
identified in the removal notice in a way that is sufficient to enable
2
the hosting service provider to comply with the notice.
3
Notice of refusal to give a removal notice
4
(3) If the Commissioner decides to refuse to give a removal notice
5
under subsection (1), the Commissioner must give written notice of
6
the refusal to:
7
(a) if subparagraph (1)(b)(i) applies--the person who made the
8
complaint mentioned in that subparagraph; or
9
(b) if subparagraph (1)(b)(ii) applies--the person who gave the
10
objection notice mentioned in that subparagraph.
11
80 Compliance with removal notice
12
A person must comply with a requirement under a removal notice
13
given under section 77, 78 or 79 to the extent that the person is
14
capable of doing so.
15
Civil penalty:
500 penalty units.
16
81 Formal warning
17
The Commissioner may issue a formal warning if a person
18
contravenes section 80.
19
Non-consensual sharing of intimate images
Part 6
Miscellaneous
Division 4
Section 83
No. , 2021
Online Safety Bill 2021
73
Division 4--Miscellaneous
1
83 Remedial direction
2
Scope
3
(1) This section applies if a person has contravened, or is
4
contravening, section 75.
5
Remedial direction
6
(2) The Commissioner may give the person a written direction
7
requiring the person to take specified action directed towards
8
ensuring that the person does not contravene section 75 in the
9
future.
10
Note:
For variation and revocation, see subsection 33(3) of the
Acts
11
Interpretation Act 1901
.
12
(3) A person must not contravene a direction under subsection (2).
13
Civil penalty:
500 penalty units.
14
Remedial direction is not a legislative instrument
15
(4) A direction under subsection (2) is not a legislative instrument.
16
84 Formal warning
17
The Commissioner may issue a formal warning if a person
18
contravenes a direction under subsection 83(2).
19
85 Service provider notifications
20
(1) If:
21
(a) an intimate image of a person is, or has been, provided on:
22
(i) a social media service; or
23
(ii) a relevant electronic service; or
24
(iii) a designated internet service; and
25
(b) the intimate image is the subject of:
26
Part 6
Non-consensual sharing of intimate images
Division 4
Miscellaneous
Section 86
74
Online Safety Bill 2021
No. , 2021
(i) a complaint made to the Commissioner under
1
section 32; or
2
(ii) an objection notice given to the Commissioner under
3
section 33; and
4
(c) if subparagraph (b)(i) applies--the Commissioner is satisfied
5
that the person did not consent to the provision of the
6
intimate image on the service; and
7
(d) the provision of the intimate image on the service is not an
8
exempt provision of the intimate image;
9
the Commissioner may, with the consent of the complainant, give
10
the provider of the service a written notice that:
11
(e) identifies the image; and
12
(f) states the Commissioner is satisfied that the person did not
13
consent to the provision of the image on the service.
14
(2) If the Commissioner is satisfied that there were 2 or more
15
occasions during the previous 12 months on which:
16
(a) an intimate image of a person is, or has been, provided on:
17
(i) a social media service; or
18
(ii) a relevant electronic service; or
19
(iii) a designated internet service; and
20
(b) the provision of the intimate image contravened the service's
21
terms of use; and
22
(c) the person did not consent to the provision of the intimate
23
image on the service; and
24
(d) the provision of the intimate image on the service is not an
25
exempt provision of the intimate image;
26
the Commissioner may:
27
(e) prepare a statement to that effect; and
28
(f) publish the statement on the Commissioner's website; and
29
(g) give a copy of the statement to the provider of the service.
30
86 Exempt provision of an intimate image
31
(1) For the purposes of this Act, if an intimate image of a person (the
32
depicted person
) is provided on:
33
(a) a social media service; or
34
Non-consensual sharing of intimate images
Part 6
Miscellaneous
Division 4
Section 86
No. , 2021
Online Safety Bill 2021
75
(b) a relevant electronic service; or
1
(c) a designated internet service;
2
the provision of the intimate image on the service is an
exempt
3
provision
of the intimate image if:
4
(d) the provision of the intimate image on the service is
5
necessary for, or of assistance in:
6
(i) enforcing a law of the Commonwealth, a State or a
7
Territory; or
8
(ii) monitoring compliance with, or investigating a
9
contravention of, a law of the Commonwealth, a State
10
or a Territory; or
11
(e) the provision of the intimate image on the service is for the
12
purposes of proceedings in a court or tribunal; or
13
(f) the provision of the intimate image on the service is for a
14
genuine medical or scientific purpose; or
15
(g) an ordinary reasonable person would consider the provision
16
of the intimate image on the service acceptable, having
17
regard to the following matters:
18
(i) the nature and content of the intimate image;
19
(ii) the circumstances in which the intimate image was
20
provided on the service;
21
(iii) the age, intellectual capacity, vulnerability or other
22
relevant circumstances of the depicted person;
23
(iv) the degree to which the provision of the intimate image
24
on the service affects the privacy of the depicted person;
25
(v) if the intimate image was posted on the service by an
26
end-user of the service--the relationship between the
27
end-user and the depicted person;
28
(vi) whether the depicted person has died, and if so, how
29
much time has elapsed since the depicted person's
30
death;
31
(vii) any other relevant matters; or
32
(h) the following conditions are satisfied:
33
(i) the intimate image was posted on the service by an
34
end-user of the service;
35
(ii) the end-user is a protected person (within the meaning
36
of section 223);
37
Part 6
Non-consensual sharing of intimate images
Division 4
Miscellaneous
Section 86
76
Online Safety Bill 2021
No. , 2021
(iii) the post was in connection with the exercise of a power,
1
or the performance of a function, conferred on the
2
Commissioner by or under this Act; or
3
(i) a condition determined under subsection (2) is satisfied.
4
(2) The Minister may, by legislative instrument, determine one or
5
more conditions for the purposes of paragraph (1)(i).
6
Cyber-abuse material targeted at an Australian adult
Part 7
Section 87
No. , 2021
Online Safety Bill 2021
77
Part 7--Cyber-abuse material targeted at an
1
Australian adult
2
3
87 Simplified outline of this Part
4
•
The provider of a social media service, a relevant electronic
5
service or a designated internet service may be given a notice
6
(a
removal notice
) requiring the removal from the service of
7
cyber-abuse material targeted at an Australian adult.
8
•
A person who posts cyber-abuse material targeted at an
9
Australian adult may be given a notice (a
removal notice
)
10
requiring the person to remove the material.
11
•
A hosting service provider who hosts cyber-abuse material
12
targeted at an Australian adult may be given a notice (a
13
removal notice
) requiring the provider to cease hosting the
14
material.
15
88 Removal notice given to the provider of a social media service,
16
relevant electronic service or designated internet service
17
(1) If:
18
(a) material is, or has been, provided on:
19
(i) a social media service; or
20
(ii) a relevant electronic service; or
21
(iii) a designated internet service; and
22
(b) the Commissioner is satisfied that the material is or was
23
cyber-abuse material targeted at an Australian adult; and
24
(c) the material was the subject of a complaint that was made to
25
the provider of the service; and
26
(d) if such a complaint was made--the material was not removed
27
from the service within:
28
(i) 48 hours after the complaint was made; or
29
Part 7
Cyber-abuse material targeted at an Australian adult
Section 89
78
Online Safety Bill 2021
No. , 2021
(ii) such longer period as the Commissioner allows; and
1
(e) a complaint has been made to the Commissioner under
2
section 36 about the material;
3
the Commissioner may give the provider of the service a written
4
notice, to be known as a
removal notice
, requiring the provider to:
5
(f) take all reasonable steps to ensure the removal of the material
6
from the service; and
7
(g) do so within:
8
(i) 24 hours after the notice was given to the provider; or
9
(ii) such longer period as the Commissioner allows.
10
(2) So far as is reasonably practicable, the material must be identified
11
in the removal notice in a way that is sufficient to enable the
12
provider of the service to comply with the notice.
13
Notice of refusal to give a removal notice
14
(3) If the Commissioner decides to refuse to give a removal notice
15
under subsection (1), the Commissioner must give written notice of
16
the refusal to the person who made the complaint to the
17
Commissioner under section 36.
18
89 Removal notice given to an end-user
19
(1) If:
20
(a) material is, or has been, provided on:
21
(i) a social media service; or
22
(ii) a relevant electronic service; or
23
(iii) a designated internet service; and
24
(b) the Commissioner is satisfied that the material is or was
25
cyber-abuse material targeted at an Australian adult; and
26
(c) the material was the subject of a complaint that was made to
27
the provider of the service; and
28
(d) if such a complaint was made--the material was not removed
29
from the service within:
30
(i) 48 hours after the complaint was made; or
31
(ii) such longer period as the Commissioner allows; and
32
Cyber-abuse material targeted at an Australian adult
Part 7
Section 90
No. , 2021
Online Safety Bill 2021
79
(e) a complaint has been made to the Commissioner under
1
section 36 about the material; and
2
(f) the material was posted on the service by a particular
3
end-user of the service;
4
the Commissioner may give the end-user a written notice, to be
5
known as a
removal notice
, requiring the end-user to:
6
(g) take all reasonable steps to ensure the removal of the material
7
from the service; and
8
(h) do so within:
9
(i) 24 hours after the notice was given to the end-user; or
10
(ii) such longer period as the Commissioner allows.
11
(2) So far as is reasonably practicable, the material must be identified
12
in the removal notice in a way that is sufficient to enable the
13
end-user to comply with the notice.
14
Notice of refusal to give a removal notice
15
(3) If the Commissioner decides to refuse to give a removal notice
16
under subsection (1), the Commissioner must give written notice of
17
the refusal to the person who made the complaint to the
18
Commissioner under section 36.
19
90 Removal notice given to a hosting service provider
20
(1) If:
21
(a) material is, or has been, provided on:
22
(i) a social media service; or
23
(ii) a relevant electronic service; or
24
(iii) a designated internet service; and
25
(b) the Commissioner is satisfied that the material is or was
26
cyber-abuse material targeted at an Australian adult; and
27
(c) the material was the subject of a complaint that was made to
28
the provider of the service; and
29
(d) if such a complaint was made--the material was not removed
30
from the service within:
31
(i) 48 hours after the complaint was made; or
32
(ii) such longer period as the Commissioner allows; and
33
Part 7
Cyber-abuse material targeted at an Australian adult
Section 91
80
Online Safety Bill 2021
No. , 2021
(e) a complaint has been made to the Commissioner under
1
section 36 about the material; and
2
(f) the material is hosted by a hosting service provider;
3
the Commissioner may give the hosting service provider a written
4
notice, to be known as a
removal notice
, requiring the provider to:
5
(g) take all reasonable steps to cease hosting the material; and
6
(h) do so within:
7
(i) 24 hours after the notice was given to the provider; or
8
(ii) such longer period as the Commissioner allows.
9
(2) So far as is reasonably practicable, the material must be identified
10
in the removal notice in a way that is sufficient to enable the
11
hosting service provider to comply with the notice.
12
Notice of refusal to give a removal notice
13
(3) If the Commissioner decides to refuse to give a removal notice
14
under subsection (1), the Commissioner must give written notice of
15
the refusal to the person who made the complaint to the
16
Commissioner under section 36.
17
91 Compliance with removal notice
18
A person must comply with a requirement under a removal notice
19
given under section 88, 89 or 90 to the extent that the person is
20
capable of doing so.
21
Civil penalty:
500 penalty units.
22
92 Formal warning
23
The Commissioner may issue a formal warning if a person
24
contravenes section 91.
25
93 Service provider notifications
26
(1) If:
27
(a) material is, or has been, provided on:
28
(i) a social media service; or
29
Cyber-abuse material targeted at an Australian adult
Part 7
Section 93
No. , 2021
Online Safety Bill 2021
81
(ii) a relevant electronic service; or
1
(iii) a designated internet service; and
2
(b) the Commissioner is satisfied that the material is or was
3
cyber-abuse material targeted at an Australian adult; and
4
(c) a complaint has been made to the Commissioner under
5
section 36 about the material;
6
the Commissioner may, with the consent of the complainant, give
7
the provider of the service a written notice that:
8
(d) identifies the material; and
9
(e) states the Commissioner is satisfied that the material is
10
cyber-abuse material targeted at an Australian adult.
11
(2) If the Commissioner is satisfied that there were 2 or more
12
occasions during the previous 12 months on which:
13
(a) cyber-abuse material targeted at an Australian adult is, or has
14
been, provided on:
15
(i) a social media service; or
16
(ii) a relevant electronic service; or
17
(iii) a designated internet service; and
18
(b) the provision of the material contravened the service's terms
19
of use;
20
the Commissioner may:
21
(c) prepare a statement to that effect; and
22
(d) publish the statement on the Commissioner's website; and
23
(e) give a copy of the statement to the provider of the service.
24
Part 8
Material that depicts abhorrent violent conduct
Division 1
Introduction
Section 94
82
Online Safety Bill 2021
No. , 2021
Part 8--Material that depicts abhorrent violent
1
conduct
2
Division 1--Introduction
3
94 Simplified outline of this Part
4
•
An internet service provider may be requested or required to
5
block access to:
6
(a)
material that promotes abhorrent violent conduct; or
7
(b)
material that incites abhorrent violent conduct; or
8
(c)
material that instructs in abhorrent violent conduct; or
9
(d)
material that depicts abhorrent violent conduct.
10
Material that depicts abhorrent violent conduct
Part 8
Blocking requests
Division 2
Section 95
No. , 2021
Online Safety Bill 2021
83
Division 2--Blocking requests
1
95 Blocking request
2
(1) If:
3
(a) material can be accessed using an internet carriage service
4
supplied by an internet service provider; and
5
(b) the Commissioner is satisfied that the material:
6
(i) promotes abhorrent violent conduct; or
7
(ii) incites abhorrent violent conduct; or
8
(iii) instructs in abhorrent violent conduct; or
9
(iv) is material that depicts abhorrent violent conduct; and
10
(c) the Commissioner is satisfied that the availability of the
11
material online is likely to cause significant harm to the
12
Australian community;
13
the Commissioner may give the provider a written request, to be
14
known as a
blocking request
, requesting the provider to take one or
15
more specified steps to disable access to the material.
16
Note:
See also section 104 (exempt material).
17
(2) The following are examples of steps that may be specified in the
18
blocking request:
19
(a) steps to block domain names that provide access to the
20
material;
21
(b) steps to block URLs that provide access to the material;
22
(c) steps to block IP addresses that provide access to the
23
material.
24
(3) The Commissioner is not required to observe any requirements of
25
procedural fairness in relation to the giving of the blocking request.
26
(4) In determining whether the availability of the material online is
27
likely to cause significant harm to the Australian community, the
28
Commissioner must have regard to the following matters:
29
(a) the nature of the material;
30
(b) the number of end-users who are likely to access the
31
material;
32
Part 8
Material that depicts abhorrent violent conduct
Division 2
Blocking requests
Section 96
84
Online Safety Bill 2021
No. , 2021
(c) such other matters (if any) as the Commissioner considers
1
relevant.
2
(5) In deciding whether to give the blocking request, the
3
Commissioner must have regard to the following matters:
4
(a) whether any other power conferred on the Commissioner
5
could be used to minimise the likelihood that the availability
6
of the material online could cause significant harm to the
7
Australian community;
8
(b) such other matters (if any) as the Commissioner considers
9
relevant.
10
96 Duration of blocking request
11
(1) A blocking request remains in force for the period specified in the
12
blocking request.
13
(2) The specified period must not be longer than 3 months.
14
Fresh blocking request
15
(3) If a blocking request (the
original blocking request
) is in force,
16
this Act does not prevent the Commissioner from giving a fresh
17
blocking request that:
18
(a) is in the same, or substantially the same, terms as the original
19
blocking request; and
20
(b) comes into force immediately after the expiry of the original
21
blocking request.
22
97 Revocation of blocking request
23
Scope
24
(1) This section applies if a blocking request is in force in relation to
25
an internet service provider.
26
Revocation
27
(2) The Commissioner may, by written notice given to the provider,
28
revoke the blocking request.
29
Material that depicts abhorrent violent conduct
Part 8
Blocking requests
Division 2
Section 98
No. , 2021
Online Safety Bill 2021
85
98 Notification in relation to domain names and URLs
1
If:
2
(a) a blocking request is in force; and
3
(b) the blocking request requests an internet service provider to:
4
(i) take steps to block a domain name; or
5
(ii) take steps to block a URL that relates to a domain name;
6
and
7
(c) the person to whom the domain name is registered is known
8
to the Commissioner;
9
the Commissioner must:
10
(d) give a copy of the blocking request to the person; and
11
(e) do so as soon as practicable after the blocking request is
12
given to the internet service provider.
13
Part 8
Material that depicts abhorrent violent conduct
Division 3
Blocking notices
Section 99
86
Online Safety Bill 2021
No. , 2021
Division 3--Blocking notices
1
99 Blocking notice
2
(1) If:
3
(a) material can be accessed using an internet carriage service
4
supplied by an internet service provider; and
5
(b) the Commissioner is satisfied that the material:
6
(i) promotes abhorrent violent conduct; or
7
(ii) incites abhorrent violent conduct; or
8
(iii) instructs in abhorrent violent conduct; or
9
(iv) is material that depicts abhorrent violent conduct; and
10
(c) the Commissioner is satisfied that the availability of the
11
material online is likely to cause significant harm to the
12
Australian community;
13
the Commissioner may give the provider a written notice, to be
14
known as a
blocking notice
, requiring the provider to take one or
15
more specified steps to disable access to the material.
16
Note:
See also section 104 (exempt material).
17
(2) The following are examples of steps that may be specified in the
18
blocking notice:
19
(a) steps to block domain names that provide access to the
20
material;
21
(b) steps to block URLs that provide access to the material;
22
(c) steps to block IP addresses that provide access to the
23
material.
24
(3) The Commissioner is not required to observe any requirements of
25
procedural fairness in relation to the giving of the blocking notice.
26
(4) In determining whether the availability of the material online is
27
likely to cause significant harm to the Australian community, the
28
Commissioner must have regard to the following matters:
29
(a) the nature of the material;
30
(b) the number of end-users who are likely to access the
31
material;
32
Material that depicts abhorrent violent conduct
Part 8
Blocking notices
Division 3
Section 100
No. , 2021
Online Safety Bill 2021
87
(c) such other matters (if any) as the Commissioner considers
1
relevant.
2
(5) In deciding whether to give the blocking notice, the Commissioner
3
must have regard to the following matters:
4
(a) whether any other power conferred on the Commissioner
5
could be used to minimise the likelihood that the availability
6
of the material online could cause significant harm to the
7
Australian community;
8
(b) such other matters (if any) as the Commissioner considers
9
relevant.
10
100 Duration of blocking notice
11
(1) A blocking notice remains in force for the period specified in the
12
blocking notice.
13
(2) The specified period must not be longer than 3 months.
14
Fresh blocking notice
15
(3) If a blocking notice (the
original blocking notice
) is in force, this
16
Act does not prevent the Commissioner from giving a fresh
17
blocking notice that:
18
(a) is in the same, or substantially the same, terms as the original
19
blocking notice; and
20
(b) comes into force immediately after the expiry of the original
21
blocking notice.
22
101 Revocation of blocking notice
23
Scope
24
(1) This section applies if a blocking notice is in force in relation to an
25
internet service provider.
26
Revocation
27
(2) The Commissioner may, by written notice given to the provider,
28
revoke the blocking notice.
29
Part 8
Material that depicts abhorrent violent conduct
Division 3
Blocking notices
Section 102
88
Online Safety Bill 2021
No. , 2021
102 Notification in relation to domain names and URLs
1
If:
2
(a) a blocking notice is in force; and
3
(b) the blocking notice requires an internet service provider to:
4
(i) take steps to block a domain name; or
5
(ii) take steps to block a URL that relates to a domain name;
6
and
7
(c) the person to whom the domain name is registered is known
8
to the Commissioner;
9
the Commissioner must:
10
(d) give a copy of the blocking notice to the person; and
11
(e) do so as soon as practicable after the blocking notice is given
12
to the internet service provider.
13
103 Compliance with blocking notice
14
A person must comply with a requirement under a blocking notice.
15
Civil penalty:
500 penalty units.
16
Material that depicts abhorrent violent conduct
Part 8
Exempt material
Division 4
Section 104
No. , 2021
Online Safety Bill 2021
89
Division 4--Exempt material
1
104 Exempt material
2
(1) Subparagraphs 46(1)(c)(v), (vi), (vii) and (viii) and 46(1)(e)(vi),
3
(vii), (viii) and (ix) and subsections 95(1) and 99(1) do not apply to
4
material that can be accessed using a carriage service if:
5
(a) the accessibility of the material is necessary for enforcing a
6
law of:
7
(i) the Commonwealth; or
8
(ii) a State; or
9
(iii) a Territory; or
10
(iv) a foreign country; or
11
(v) a part of a foreign country; or
12
(b) the accessibility of the material is necessary for monitoring
13
compliance with, or investigating a contravention of, a law
14
of:
15
(i) the Commonwealth; or
16
(ii) a State; or
17
(iii) a Territory; or
18
(iv) a foreign country; or
19
(v) a part of a foreign country; or
20
(c) the accessibility of the material is for the purposes of
21
proceedings in a court or tribunal; or
22
(d) both:
23
(i) the accessibility of the material is necessary for, or of
24
assistance in, conducting scientific, medical, academic
25
or historical research; and
26
(ii) the accessibility of the material is reasonable in the
27
circumstances for the purpose of conducting that
28
scientific, medical, academic or historical research; or
29
(e) the material relates to a news report, or a current affairs
30
report, that:
31
(i) is in the public interest; and
32
Part 8
Material that depicts abhorrent violent conduct
Division 4
Exempt material
Section 104
90
Online Safety Bill 2021
No. , 2021
(ii) is made by a person working in a professional capacity
1
as a journalist; or
2
(f) both:
3
(i) the accessibility of the material is in connection with the
4
performance by a public official of the official's duties
5
or functions; and
6
(ii) the accessibility of the material is reasonable in the
7
circumstances for the purpose of performing that duty or
8
function; or
9
(g) both:
10
(i) the accessibility of the material is in connection with an
11
individual assisting a public official in relation to the
12
performance of the public official's duties or functions;
13
and
14
(ii) the accessibility of the material is reasonable in the
15
circumstances for the purpose of the individual assisting
16
the public official in relation to the performance of the
17
public official's duties or functions; or
18
(h) the accessibility of the material is for the purpose of
19
advocating the lawful procurement of a change to any matter
20
established by law, policy or practice in:
21
(i) the Commonwealth; or
22
(ii) a State; or
23
(iii) a Territory; or
24
(iv) a foreign country; or
25
(v) a part of a foreign country;
26
and the accessibility of the material is reasonable in the
27
circumstances for that purpose; or
28
(i) the accessibility of the material relates to the development,
29
performance, exhibition or distribution, in good faith, of an
30
artistic work.
31
(2) For the purposes of this section,
public official
has the same
32
meaning as in the
Criminal Code
.
33
Online content scheme
Part 9
Introduction
Division 1
Section 105
No. , 2021
Online Safety Bill 2021
91
Part 9--Online content scheme
1
Division 1--Introduction
2
105 Simplified outline of this Part
3
•
The provider of a social media service, relevant electronic
4
service or designated internet service may be given a notice (a
5
removal notice
) requiring the provider to remove certain
6
material.
7
•
A hosting service provider may be given a notice (a
removal
8
notice
) requiring the provider to cease hosting certain
9
material.
10
•
The provider of an internet search engine service may be
11
given a notice (a
link deletion notice
) requiring the provider
12
to cease providing a link to certain material.
13
•
The provider of an app distribution service may be given a
14
notice (an
app removal notice
) requiring the provider to cease
15
enabling end-users to download an app that facilitates the
16
posting of certain material on a social media service, relevant
17
electronic service or designated internet service.
18
•
Bodies and associations that represent sections of the online
19
industry may develop industry codes.
20
•
The Commissioner may make an industry standard.
21
•
The Commissioner may make service provider determinations
22
regulating service providers in the online industry.
23
106 Class 1 material
24
(1) For the purposes of this Act,
class 1 material
means:
25
(a) material where the following conditions are satisfied:
26
Part 9
Online content scheme
Division 1
Introduction
Section 106
92
Online Safety Bill 2021
No. , 2021
(i) the material is a film or the contents of a film;
1
(ii) the film has been classified as RC by the Classification
2
Board under the
Classification (Publications, Films and
3
Computer Games) Act 1995
; or
4
(b) material where the following conditions are satisfied:
5
(i) the material is a film or the contents of a film;
6
(ii) the film has not been classified by the Classification
7
Board under the
Classification (Publications, Films and
8
Computer Games) Act 1995
;
9
(iii) if the film were to be classified by the Classification
10
Board under that Act--the film would be likely to be
11
classified as RC; or
12
(c) material where the following conditions are satisfied:
13
(i) the material is a publication or the contents of a
14
publication;
15
(ii) the publication has been classified as RC by the
16
Classification Board under the
Classification
17
(Publications, Films and Computer Games) Act 1995
;
18
or
19
(d) material where the following conditions are satisfied:
20
(i) the material is a publication or the contents of a
21
publication;
22
(ii) the publication has not been classified by the
23
Classification Board under the
Classification
24
(Publications, Films and Computer Games) Act 1995
;
25
(iii) if the publication were to be classified by the
26
Classification Board under that Act--the publication
27
would be likely to be classified as RC; or
28
(e) material where the following conditions are satisfied:
29
(i) the material is a computer game;
30
(ii) the computer game has been classified as RC by the
31
Classification Board under the
Classification
32
(Publications, Films and Computer Games) Act 1995
;
33
or
34
(f) material where the following conditions are satisfied:
35
(i) the material is a computer game;
36
Online content scheme
Part 9
Introduction
Division 1
Section 107
No. , 2021
Online Safety Bill 2021
93
(ii) the computer game has not been classified by the
1
Classification Board under the
Classification
2
(Publications, Films and Computer Games) Act 1995
;
3
(iii) if the computer game were to be classified by the
4
Classification Board under that Act--the computer
5
game would be likely to be classified as RC; or
6
(g) material where the following conditions are satisfied:
7
(i) the material is not a film, the contents of a film, a
8
computer game, a publication or the contents of a
9
publication;
10
(ii) if the material were to be classified by the Classification
11
Board in a corresponding way to the way in which a
12
film would be classified under the
Classification
13
(Publications, Films and Computer Games) Act 1995
--
14
the material would be likely to be classified as RC.
15
Note:
See also section 160 (Commissioner may obtain advice from the
16
Classification Board).
17
(2) Section 22CF of the
Classification (Publications, Films and
18
Computer Games) Act 1995
(which deals with classification using
19
an approved classification tool) applies for the purposes of this
20
section in a corresponding way to the way in which it applies for
21
the purposes of that Act.
22
107 Class 2 material
23
(1) For the purposes of this Act,
class 2 material
means:
24
(a) material where the following conditions are satisfied:
25
(i) the material is a film or the contents of a film;
26
(ii) the film has been classified as X 18+ by the
27
Classification Board under the
Classification
28
(Publications, Films and Computer Games) Act 1995
;
29
or
30
(b) material where the following conditions are satisfied:
31
(i) the material is a film or the contents of a film;
32
(ii) the film has not been classified by the Classification
33
Board under the
Classification (Publications, Films and
34
Computer Games) Act 1995
;
35
Part 9
Online content scheme
Division 1
Introduction
Section 107
94
Online Safety Bill 2021
No. , 2021
(iii) if the film were to be classified by the Classification
1
Board under that Act--the film would be likely to be
2
classified as X 18+; or
3
(c) material where the following conditions are satisfied:
4
(i) the material is a publication or the contents of a
5
publication;
6
(ii) the publication has been classified as Category 2
7
restricted by the Classification Board under the
8
Classification (Publications, Films and Computer
9
Games) Act 1995
; or
10
(d) material where the following conditions are satisfied:
11
(i) the material is a publication or the contents of a
12
publication;
13
(ii) the publication has not been classified by the
14
Classification Board under the
Classification
15
(Publications, Films and Computer Games) Act 1995
;
16
(iii) if the publication were to be classified by the
17
Classification Board under that Act--the publication
18
would be likely to be classified as Category 2 restricted;
19
or
20
(e) material where the following conditions are satisfied:
21
(i) the material is not a film, the contents of a film, a
22
computer game, a publication or the contents of a
23
publication;
24
(ii) if the material were to be classified by the Classification
25
Board in a corresponding way to the way in which a
26
film would be classified under the
Classification
27
(Publications, Films and Computer Games) Act 1995
--
28
the material would be likely to be classified as X 18+;
29
or
30
(f) material where the following conditions are satisfied:
31
(i) the material is a film or the contents of a film;
32
(ii) the film has been classified as R 18+ by the
33
Classification Board under the
Classification
34
(Publications, Films and Computer Games) Act 1995
;
35
or
36
(g) material where the following conditions are satisfied:
37
Online content scheme
Part 9
Introduction
Division 1
Section 107
No. , 2021
Online Safety Bill 2021
95
(i) the material is a film or the contents of a film;
1
(ii) the film has not been classified by the Classification
2
Board under the
Classification (Publications, Films and
3
Computer Games) Act 1995
;
4
(iii) if the film were to be classified by the Classification
5
Board under that Act--the film would be likely to be
6
classified as R 18+; or
7
(h) material where the following conditions are satisfied:
8
(i) the material is a publication or the contents of a
9
publication;
10
(ii) the publication has been classified as Category 1
11
restricted by the Classification Board under the
12
Classification (Publications, Films and Computer
13
Games) Act 1995
; or
14
(i) material where the following conditions are satisfied:
15
(i) the material is a publication or the contents of a
16
publication;
17
(ii) the publication has not been classified by the
18
Classification Board under the
Classification
19
(Publications, Films and Computer Games) Act 1995
;
20
(iii) if the publication were to be classified by the
21
Classification Board under that Act--the publication
22
would be likely to be classified as Category 1 restricted;
23
or
24
(j) material where the following conditions are satisfied:
25
(i) the material is a computer game;
26
(ii) the computer game has been classified as R 18+ by the
27
Classification Board under the
Classification
28
(Publications, Films and Computer Games) Act 1995
;
29
or
30
(k) material where the following conditions are satisfied:
31
(i) the material is a computer game;
32
(ii) the computer game has not been classified by the
33
Classification Board under the
Classification
34
(Publications, Films and Computer Games) Act 1995
;
35
Part 9
Online content scheme
Division 1
Introduction
Section 108
96
Online Safety Bill 2021
No. , 2021
(iii) if the computer game were to be classified by the
1
Classification Board under that Act--the computer
2
game would be likely to be classified as R 18+; or
3
(l) material where the following conditions are satisfied:
4
(i) the material is not a film, the contents of a film, a
5
computer game, a publication or the contents of a
6
publication;
7
(ii) if the material were to be classified by the Classification
8
Board in a corresponding way to the way in which a
9
film would be classified under the
Classification
10
(Publications, Films and Computer Games) Act 1995
--
11
the material would be likely to be classified as R 18+.
12
Note:
See also section 160 (Commissioner may obtain advice from the
13
Classification Board).
14
(2) Section 22CF of the
Classification (Publications, Films and
15
Computer Games) Act 1995
(which deals with classification using
16
an approved classification tool) applies for the purposes of this
17
section in a corresponding way to the way in which it applies for
18
the purposes of that Act.
19
108 Restricted access system
20
(1) The Commissioner may, by legislative instrument, declare that a
21
specified access-control system is a
restricted access system
in
22
relation to material for the purposes of this Act.
23
Note:
For specification by class, see subsection 13(3) of the
Legislation Act
24
2003
.
25
(2) An instrument under subsection (1) may make different provision
26
with respect to different kinds of material.
27
(3) Subsection (2) does not limit subsection 33(3A) of the
Acts
28
Interpretation Act 1901
.
29
(4) In making an instrument under subsection (1), the Commissioner
30
must have regard to:
31
(a) the objective of protecting children from exposure to material
32
that is unsuitable for children; and
33
Online content scheme
Part 9
Introduction
Division 1
Section 108
No. , 2021
Online Safety Bill 2021
97
(b) the extent to which the instrument would be likely to result in
1
a financial or administrative burden on providers of the
2
following services:
3
(i) social media services;
4
(ii) relevant electronic services;
5
(iii) designated internet services; and
6
(c) such other matters (if any) as the Commissioner considers
7
relevant.
8
(5) The Commissioner must ensure that an instrument under
9
subsection (1) is in force at all times after the commencement of
10
this section.
11
Part 9
Online content scheme
Division 2
Removal notices relating to class 1 material
Section 109
98
Online Safety Bill 2021
No. , 2021
Division 2--Removal notices relating to class 1 material
1
109 Removal notice given to the provider of a social media service,
2
relevant electronic service or designated internet service
3
(1) If:
4
(a) material is, or has been, provided on:
5
(i) a social media service; or
6
(ii) a relevant electronic service; or
7
(iii) a designated internet service; and
8
(b) the Commissioner is satisfied that the material is or was class
9
1 material; and
10
(c) the material can be accessed by end-users in Australia; and
11
(d) the service is not:
12
(i) an exempt Parliamentary content service; or
13
(ii) an exempt court/tribunal content service; or
14
(iii) an exempt official-inquiry content service;
15
the Commissioner may give the provider of the service a written
16
notice, to be known as a
removal notice
, requiring the provider to:
17
(e) take all reasonable steps to ensure the removal of the material
18
from the service; and
19
(f) do so within:
20
(i) 24 hours after the notice was given to the provider; or
21
(ii) such longer period as the Commissioner allows.
22
(2) So far as is reasonably practicable, the material must be identified
23
in the removal notice in a way that is sufficient to enable the
24
provider of the service to comply with the notice.
25
110 Removal notice given to a hosting service provider
26
(1) If:
27
(a) material is, or has been, provided on:
28
(i) a social media service; or
29
(ii) a relevant electronic service; or
30
(iii) a designated internet service; and
31
Online content scheme
Part 9
Removal notices relating to class 1 material
Division 2
Section 111
No. , 2021
Online Safety Bill 2021
99
(b) the Commissioner is satisfied that the material is or was class
1
1 material; and
2
(c) the material can be accessed by end-users in Australia; and
3
(d) the service is not:
4
(i) an exempt Parliamentary content service; or
5
(ii) an exempt court/tribunal content service; or
6
(iii) an exempt official-inquiry content service; and
7
(e) the material is hosted by a hosting service provider;
8
the Commissioner may give the hosting service provider a written
9
notice, to be known as a
removal notice
, requiring the provider to:
10
(f) take all reasonable steps to cease hosting the material; and
11
(g) do so within:
12
(i) 24 hours after the notice was given to the provider; or
13
(ii) such longer period as the Commissioner allows.
14
(2) So far as is reasonably practicable, the material must be identified
15
in the removal notice in a way that is sufficient to enable the
16
hosting service provider to comply with the notice.
17
111 Compliance with removal notice
18
A person must comply with a requirement under a removal notice
19
given under section 109 or 110 to the extent that the person is
20
capable of doing so.
21
Civil penalty:
500 penalty units.
22
112 Formal warning
23
The Commissioner may issue a formal warning if a person
24
contravenes section 111.
25
113 Revocation of removal notice
26
If a removal notice is in force under section 109 or 110 in relation
27
to:
28
(a) the provider of a social media service; or
29
(b) the provider of a relevant electronic service; or
30
Part 9
Online content scheme
Division 2
Removal notices relating to class 1 material
Section 113A
100
Online Safety Bill 2021
No. , 2021
(c) the provider of a designated internet service; or
1
(d) a hosting service provider;
2
the Commissioner may, by written notice given to the provider,
3
revoke the removal notice.
4
113A Service provider notifications
5
If the Commissioner is satisfied that there were 2 or more
6
occasions during the previous 12 months on which:
7
(a) class 1 material is, or has been, provided on:
8
(i) a social media service; or
9
(ii) a relevant electronic service; or
10
(iii) a designated internet service; and
11
(b) the material can be, or was able to be, accessed by end-users
12
in Australia; and
13
(c) the service is not:
14
(i) an exempt Parliamentary content service; or
15
(ii) an exempt court/tribunal content service; or
16
(iii) an exempt official-inquiry content service; and
17
(d) the provision of the material contravened the service's terms
18
of use;
19
the Commissioner may:
20
(e) prepare a statement to that effect; and
21
(f) publish the statement on the Commissioner's website; and
22
(g) give a copy of the statement to the provider of the service.
23
Online content scheme
Part 9
Removal notices relating to class 2 material
Division 3
Section 114
No. , 2021
Online Safety Bill 2021
101
Division 3--Removal notices relating to class 2 material
1
114 Removal notice given to the provider of a social media service,
2
relevant electronic service or designated internet service
3
(1) If:
4
(a) material is, or has been, provided on:
5
(i) a social media service; or
6
(ii) a relevant electronic service; or
7
(iii) a designated internet service; and
8
(b) the Commissioner is satisfied that the material is class 2
9
material covered by paragraph 107(1)(a), (b), (c), (d) or (e);
10
and
11
(c) the material can be accessed by end-users in Australia; and
12
(d) the service is not:
13
(i) an exempt Parliamentary content service; or
14
(ii) an exempt court/tribunal content service; or
15
(iii) an exempt official-inquiry content service; and
16
(e) the service is provided from Australia;
17
the Commissioner may give the provider of the service a written
18
notice, to be known as a
removal notice
, requiring the provider to:
19
(f) take all reasonable steps to ensure the removal of the material
20
from the service; and
21
(g) do so within:
22
(i) 24 hours after the notice was given to the provider; or
23
(ii) such longer period as the Commissioner allows.
24
(2) So far as is reasonably practicable, the material must be identified
25
in the removal notice in a way that is sufficient to enable the
26
provider of the service to comply with the notice.
27
115 Removal notice given to a hosting service provider
28
(1) If:
29
(a) material is, or has been, provided on:
30
(i) a social media service; or
31
Part 9
Online content scheme
Division 3
Removal notices relating to class 2 material
Section 116
102
Online Safety Bill 2021
No. , 2021
(ii) a relevant electronic service; or
1
(iii) a designated internet service; and
2
(b) the Commissioner is satisfied that the material is class 2
3
material covered by paragraph 107(1)(a), (b), (c), (d) or (e);
4
and
5
(c) the material can be accessed by end-users in Australia; and
6
(d) the service is not:
7
(i) an exempt Parliamentary content service; or
8
(ii) an exempt court/tribunal content service; or
9
(iii) an exempt official-inquiry content service; and
10
(e) the material is hosted by a hosting service provider; and
11
(f) the material is hosted in Australia;
12
the Commissioner may give the hosting service provider a written
13
notice, to be known as a
removal notice
, requiring the provider to:
14
(g) take all reasonable steps to cease hosting the material; and
15
(h) do so within:
16
(i) 24 hours after the notice was given to the provider; or
17
(ii) such longer period as the Commissioner allows.
18
(2) So far as is reasonably practicable, the material must be identified
19
in the removal notice in a way that is sufficient to enable the
20
hosting service provider to comply with the notice.
21
116 Compliance with removal notice
22
A person must comply with a requirement under a removal notice
23
given under section 114 or 115 to the extent that the person is
24
capable of doing so.
25
Civil penalty:
500 penalty units.
26
117 Formal warning
27
The Commissioner may issue a formal warning if a person
28
contravenes section 116.
29
Online content scheme
Part 9
Removal notices relating to class 2 material
Division 3
Section 118
No. , 2021
Online Safety Bill 2021
103
118 Revocation of removal notice
1
If a removal notice is in force under section 114 or 115 in relation
2
to:
3
(a) the provider of a social media service; or
4
(b) the provider of a relevant electronic service; or
5
(c) the provider of a designated internet service; or
6
(d) a hosting service provider;
7
the Commissioner may, by written notice given to the provider,
8
revoke the removal notice.
9
118A Service provider notifications
10
If the Commissioner is satisfied that there were 2 or more
11
occasions during the previous 12 months on which:
12
(a) class 2 material covered by paragraph 107(1)(a), (b), (c), (d)
13
or (e) is, or has been, provided on:
14
(i) a social media service; or
15
(ii) a relevant electronic service; or
16
(iii) a designated internet service; and
17
(b) the material can be, or was able to be, accessed by end-users
18
in Australia; and
19
(c) the service is not:
20
(i) an exempt Parliamentary content service; or
21
(ii) an exempt court/tribunal content service; or
22
(iii) an exempt official-inquiry content service; and
23
(d) the service is provided from Australia; and
24
(e) the provision of the material contravened the service's terms
25
of use;
26
the Commissioner may:
27
(f) prepare a statement to that effect; and
28
(g) publish the statement on the Commissioner's website; and
29
(h) give a copy of the statement to the provider of the service.
30
Part 9
Online content scheme
Division 4
Remedial notices relating to class 2 material
Section 119
104
Online Safety Bill 2021
No. , 2021
Division 4--Remedial notices relating to class 2 material
1
119 Remedial notice given to the provider of a social media service,
2
relevant electronic service or designated internet service
3
(1) If:
4
(a) material is, or has been, provided on:
5
(i) a social media service; or
6
(ii) a relevant electronic service; or
7
(iii) a designated internet service; and
8
(b) the Commissioner is satisfied that the material is class 2
9
material covered by paragraph 107(1)(f), (g), (h), (i), (j), (k)
10
or (l); and
11
(c) the material can be accessed by end-users in Australia; and
12
(d) the service is not:
13
(i) an exempt Parliamentary content service; or
14
(ii) an exempt court/tribunal content service; or
15
(iii) an exempt official-inquiry content service; and
16
(e) the service is provided from Australia;
17
the Commissioner may give the provider of the service a written
18
notice, to be known as a
remedial notice
, requiring the provider to:
19
(f) take all reasonable steps to ensure either of the following
20
situations exist in relation to the material:
21
(i) the material is removed from the service;
22
(ii) access to the material is subject to a restricted access
23
system; and
24
(g) do so within:
25
(i) 24 hours after the notice was given to the provider; or
26
(ii) such longer period as the Commissioner allows.
27
(2) So far as is reasonably practicable, the material must be identified
28
in the remedial notice in a way that is sufficient to enable the
29
provider of the service to comply with the notice.
30
Online content scheme
Part 9
Remedial notices relating to class 2 material
Division 4
Section 120
No. , 2021
Online Safety Bill 2021
105
120 Remedial notice given to a hosting service provider
1
(1) If:
2
(a) material is, or has been, provided on:
3
(i) a social media service; or
4
(ii) a relevant electronic service; or
5
(iii) a designated internet service; and
6
(b) the Commissioner is satisfied that the material is class 2
7
material covered by paragraph 107(1)(f), (g), (h), (i), (j), (k)
8
or (l); and
9
(c) the material can be accessed by end-users in Australia; and
10
(d) the service is not:
11
(i) an exempt Parliamentary content service; or
12
(ii) an exempt court/tribunal content service; or
13
(iii) an exempt official-inquiry content service; and
14
(e) the material is hosted by a hosting service provider; and
15
(f) the material is hosted in Australia;
16
the Commissioner may give the hosting service provider a written
17
notice, to be known as a
remedial notice
, requiring the provider to:
18
(g) take all reasonable steps to ensure either of the following
19
situations exist in relation to the material:
20
(i) the service ceases to host the material;
21
(ii) access to the material is subject to a restricted access
22
system; and
23
(h) do so within:
24
(i) 24 hours after the notice was given to the provider; or
25
(ii) such longer period as the Commissioner allows.
26
(2) So far as is reasonably practicable, the material must be identified
27
in the remedial notice in a way that is sufficient to enable the
28
hosting service provider to comply with the notice.
29
121 Compliance with remedial notice
30
A person must comply with a requirement under a remedial notice
31
given under section 119 or 120 to the extent that the person is
32
capable of doing so.
33
Part 9
Online content scheme
Division 4
Remedial notices relating to class 2 material
Section 122
106
Online Safety Bill 2021
No. , 2021
Civil penalty:
500 penalty units.
1
122 Formal warning
2
The Commissioner may issue a formal warning if a person
3
contravenes section 121.
4
123 Revocation of remedial notice
5
If a remedial notice is in force under section 119 or 120 in relation
6
to:
7
(a) the provider of a social media service; or
8
(b) the provider of a relevant electronic service; or
9
(c) the provider of a designated internet service; or
10
(d) a hosting service provider;
11
the Commissioner may, by written notice given to the provider,
12
revoke the removal notice.
13
123A Service provider notifications
14
If the Commissioner is satisfied that there were 2 or more
15
occasions during the previous 12 months on which:
16
(a) class 2 material covered by paragraph 107(1)(f), (g), (h), (i),
17
(j), (k) or (l) is, or has been, provided on:
18
(i) a social media service; or
19
(ii) a relevant electronic service; or
20
(iii) a designated internet service; and
21
(b) the material can be, or was able to be, accessed by end-users
22
in Australia; and
23
(c) access to the material is not, or was not, subject to a restricted
24
access system; and
25
(d) the service is not:
26
(i) an exempt Parliamentary content service; or
27
(ii) an exempt court/tribunal content service; or
28
(iii) an exempt official-inquiry content service; and
29
(e) the service is provided from Australia; and
30
Online content scheme
Part 9
Remedial notices relating to class 2 material
Division 4
Section 123A
No. , 2021
Online Safety Bill 2021
107
(f) the provision of the material contravened the service's terms
1
of use;
2
the Commissioner may:
3
(g) prepare a statement to that effect; and
4
(h) publish the statement on the Commissioner's website; and
5
(i) give a copy of the statement to the provider of the service.
6
Part 9
Online content scheme
Division 5
Link deletion notices
Section 124
108
Online Safety Bill 2021
No. , 2021
Division 5--Link deletion notices
1
124 Link deletion notice
2
(1) If:
3
(a) a person provides an internet search engine service; and
4
(b) end-users in Australia can access class 1 material using a link
5
provided by the service;
6
the Commissioner may give the provider of the service a written
7
notice, to be known as a
link deletion notice
, requiring the
8
provider to:
9
(c) cease providing a link to the material using the service; and
10
(d) do so within:
11
(i) 24 hours after the notice was given to the provider; or
12
(ii) such longer period as the Commissioner allows.
13
(2) So far as is reasonably practicable, the material must be identified
14
in the link deletion notice in a way that is sufficient to enable the
15
internet search engine service provider to cease providing a link to
16
the material.
17
(3) The link deletion notice may also require the internet search engine
18
service provider to:
19
(a) notify the Commissioner that the provider has ceased to
20
provide a link to the material; and
21
(b) do so as soon as practicable after the cessation.
22
(4) The Commissioner must not give the link deletion notice unless:
23
(a) the Commissioner is satisfied that there were 2 or more times
24
during the previous 12 months when end-users in Australia
25
could access class 1 material using a link provided by the
26
service; and
27
(b) during the previous 12 months:
28
(i) the Commissioner gave one or more removal notices
29
under section 109 or 110 in relation to class 1 material
30
that could be accessed using a link provided by the
31
service; and
32
Online content scheme
Part 9
Link deletion notices
Division 5
Section 125
No. , 2021
Online Safety Bill 2021
109
(ii) those removal notices were not complied with.
1
125 Compliance with link deletion notice
2
A person must comply with a requirement under a link deletion
3
notice to the extent that the person is capable of doing so.
4
Civil penalty:
500 penalty units.
5
126 Formal warning
6
The Commissioner may issue a formal warning if a person
7
contravenes section 125.
8
127 Revocation of link deletion notice
9
If a link deletion notice is in force relation to the provider of an
10
internet search engine service, the Commissioner may, by written
11
notice given to the provider, revoke the link deletion notice.
12
Part 9
Online content scheme
Division 6
App removal notices
Section 128
110
Online Safety Bill 2021
No. , 2021
Division 6--App removal notices
1
128 App removal notice
2
(1) If:
3
(a) a person provides an app distribution service; and
4
(b) the service enables end-users in Australia to download an app
5
that facilitates the posting of class 1 material on:
6
(i) a social media service; or
7
(ii) a relevant electronic service; or
8
(iii) a designated internet service;
9
the Commissioner may give the provider of the app distribution
10
service a written notice, to be known as an
app removal notice
,
11
requiring the provider to:
12
(c) cease enabling end-users in Australia to download the app
13
using the service; and
14
(d) do so within:
15
(i) 24 hours after the notice was given to the provider; or
16
(ii) such longer period as the Commissioner allows.
17
(2) So far as is reasonably practicable, the material must be identified
18
in the app removal notice in a way that is sufficient to enable the
19
app distribution service provider to comply with the notice.
20
(3) The app removal notice may also require the app distribution
21
service provider to:
22
(a) notify the Commissioner that the provider has ceased to
23
enable end-users in Australia to download the app; and
24
(b) do so as soon as practicable after the cessation.
25
(4) The Commissioner must not give the app removal notice unless:
26
(a) the Commissioner is satisfied that there were 2 or more times
27
during the previous 12 months when end-users in Australia
28
could use the service to download an app that facilitates the
29
posting of class 1 material; and
30
(b) during the previous 12 months:
31
Online content scheme
Part 9
App removal notices
Division 6
Section 129
No. , 2021
Online Safety Bill 2021
111
(i) the Commissioner gave one or more removal notices
1
under section 109 or 110 in relation to class 1 material,
2
the posting of which is facilitated by the app; and
3
(ii) those removal notices were not complied with.
4
129 Compliance with app removal notice
5
A person must comply with a requirement under an app removal
6
notice to the extent that the person is capable of doing so.
7
Civil penalty:
500 penalty units.
8
130 Formal warning
9
The Commissioner may issue a formal warning if a person
10
contravenes section 129.
11
131 Revocation of app removal notice
12
If an app removal notice is in force in relation to the provider of an
13
app distribution service, the Commissioner may, by written notice
14
given to the provider, revoke the app removal notice.
15
Part 9
Online content scheme
Division 7
Industry codes and industry standards
Section 132
112
Online Safety Bill 2021
No. , 2021
Division 7--Industry codes and industry standards
1
Subdivision A--Interpretation
2
132 Industry codes
3
For the purposes of this Division, an
industry code
is a code
4
developed under this Division (whether or not in response to a
5
request under this Division).
6
133 Industry standards
7
For the purposes of this Division, an
industry standard
is a
8
standard determined under this Division.
9
134 Online activity
10
For the purposes of this Division, an
online activity
is an activity
11
that consists of:
12
(a) providing a social media service, so far as the service is
13
provided to end-users in Australia; or
14
(b) providing a relevant electronic service, so far as the service is
15
provided to end-users in Australia; or
16
(c) providing a designated internet service, so far as the service
17
is provided to end-users in Australia; or
18
(d) providing an internet search engine service, so far as the
19
service is provided to end-users in Australia; or
20
(e) providing an app distribution service, so far as the service is
21
provided to end-users in Australia; or
22
(f) providing a hosting service, so far as the service hosts
23
material in Australia; or
24
(g) providing an internet carriage service, so far as the service is
25
provided to customers in Australia; or
26
(h) manufacturing, supplying, maintaining or installing any of
27
the following equipment:
28
(i) equipment that is for use by end-users in Australia of a
29
social media service in connection with the service;
30
Online content scheme
Part 9
Industry codes and industry standards
Division 7
Section 135
No. , 2021
Online Safety Bill 2021
113
(ii) equipment that is for use by end-users in Australia of a
1
relevant electronic service in connection with the
2
service;
3
(iii) equipment that is for use by end-users in Australia of a
4
designated internet service in connection with the
5
service;
6
(iv) equipment that is for use by end-users in Australia of an
7
internet carriage service in connection with the service.
8
135 Sections of the online industry
9
(1) For the purposes of this Division,
sections of the online industry
10
are to be ascertained in accordance with this section.
11
(2) For the purposes of this Division, each of the following groups is a
12
section of the online industry
:
13
(a) the group consisting of providers of social media services, so
14
far as those services are provided to end-users in Australia;
15
(b) the group consisting of providers of relevant electronic
16
services, so far as those services are provided to end-users in
17
Australia;
18
(c) the group consisting of providers of designated internet
19
services, so far as those services are provided to end-users in
20
Australia;
21
(d) the group consisting of providers of internet search engine
22
services, so far as those services are provided to end-users in
23
Australia;
24
(e) the group consisting of providers of app distribution services,
25
so far as those services are provided to end-users in
26
Australia;
27
(f) the group consisting of providers of hosting services, so far
28
as those services host material in Australia;
29
(g) the group consisting of providers of internet carriage
30
services, so far as those services are provided to customers in
31
Australia;
32
(h) the group consisting of persons who manufacture, supply,
33
maintain or install any of the following equipment:
34
Part 9
Online content scheme
Division 7
Industry codes and industry standards
Section 136
114
Online Safety Bill 2021
No. , 2021
(i) equipment that is for use by end-users in Australia of a
1
social media service in connection with the service;
2
(ii) equipment that is for use by end-users in Australia of a
3
relevant electronic service in connection with the
4
service;
5
(iii) equipment that is for use by end-users in Australia of a
6
designated internet service in connection with the
7
service;
8
(iv) equipment that is for use by end-users in Australia of an
9
internet carriage service in connection with the service.
10
136 Participants in a section of the online industry
11
For the purposes of this Division, if a person is a member of a
12
group that constitutes a section of the online industry, the person is
13
a
participant
in that section of the online industry.
14
Subdivision B--General principles relating to industry codes
15
and industry standards
16
137 Statement of regulatory policy
17
(1) The Parliament intends that bodies or associations that the
18
Commissioner is satisfied represent sections of the online industry
19
should develop codes (
industry codes
) that are to apply to
20
participants in the respective sections of the industry in relation to
21
their online activities.
22
(2) The Parliament intends that the Commissioner should make
23
reasonable efforts to ensure that, for each section of the online
24
industry, either:
25
(a) an industry code is registered under this Division within 6
26
months after the commencement of this Division; or
27
(b) an industry standard is registered under this Division within
28
12 months after the commencement of this Division.
29
Online content scheme
Part 9
Industry codes and industry standards
Division 7
Section 138
No. , 2021
Online Safety Bill 2021
115
138 Examples of matters that may be dealt with by industry codes
1
and industry standards
2
(1) This section sets out examples of matters that may be dealt with by
3
industry codes and industry standards.
4
(2) The applicability of a particular example will depend on which
5
section of the online industry is involved.
6
(3) The examples are as follows:
7
(a) procedures for dealing with class 1 material, or class 2
8
material, provided on a social media service;
9
(b) procedures for dealing with class 1 material, or class 2
10
material, provided on a relevant electronic service;
11
(c) procedures for dealing with class 1 material, or class 2
12
material, provided on a designated internet service;
13
(d) procedures directed towards the achievement of the objective
14
of ensuring that, in the event that a participant in the
15
providers of internet carriage services section of the online
16
industry becomes aware that a hosting service provider is
17
hosting class 1 material, or class 2 material, in Australia, the
18
hosting service provider is told about the material;
19
(e) procedures to be followed in order to inform producers of
20
online content about their legal responsibilities in relation to
21
that content;
22
(f) procedures directed towards the achievement of the objective
23
of ensuring that online accounts are not provided to children
24
without the consent of a parent or responsible adult;
25
(g) procedures directed towards the achievement of the objective
26
of ensuring that customers have the option of subscribing to a
27
filtered internet carriage service;
28
(h) giving end-users information about the availability, use and
29
appropriate application of online content filtering software;
30
(i) providing end-users with access to technological solutions to
31
help them limit access to class 1 material and class 2
32
material;
33
(j) providing end-users with advice on how to limit access to
34
class 1 material and class 2 material;
35
Part 9
Online content scheme
Division 7
Industry codes and industry standards
Section 138
116
Online Safety Bill 2021
No. , 2021
(k) action to be taken to assist in the development and
1
implementation of online content filtering technologies
2
(including labelling technologies);
3
(l) promoting awareness of the safety issues associated with
4
social media services;
5
(m) promoting awareness of the safety issues associated with
6
relevant electronic services;
7
(n) promoting awareness of the safety issues associated with
8
designated internet services;
9
(o) procedures to be followed in order to deal with safety issues
10
associated with social media services;
11
(p) procedures to be followed in order to deal with safety issues
12
associated with relevant electronic services;
13
(q) procedures to be followed in order to deal with safety issues
14
associated with designated internet services;
15
(r) giving parents and responsible adults information about how
16
to supervise and control children's access to material
17
provided on social media services;
18
(s) giving parents and responsible adults information about how
19
to supervise and control children's access to material
20
provided on relevant electronic services;
21
(t) giving parents and responsible adults information about how
22
to supervise and control children's access to material
23
provided on designated internet services;
24
(u) telling persons about their rights to make complaints;
25
(v) procedures to be followed in order to deal with complaints
26
about class 1 material, or class 2 material, provided on social
27
media services;
28
(w) procedures to be followed in order to deal with complaints
29
about class 1 material, or class 2 material, provided on
30
relevant electronic services;
31
(x) procedures to be followed in order to deal with complaints
32
about class 1 material, or class 2 material, provided on
33
designated internet services;
34
(y) procedures to be followed in order to deal with reports about
35
class 1 material, or class 2 material, provided on social media
36
Online content scheme
Part 9
Industry codes and industry standards
Division 7
Section 138
No. , 2021
Online Safety Bill 2021
117
services, where the reports are made by or on behalf of
1
end-users of those services;
2
(z) procedures to be followed in order to deal with reports about
3
class 1 material, or class 2 material, provided on relevant
4
electronic services, where the reports are made by or on
5
behalf of end-users of those services;
6
(za) procedures to be followed in order to deal with reports about
7
class 1 material, or class 2 material, provided on designated
8
internet services, where the reports are made by or on behalf
9
of end-users of those services;
10
(zb) procedures to be followed in order to deal with complaints
11
about unsolicited electronic messages that promote or
12
advertise one or more:
13
(i) websites; or
14
(ii) distinct parts of websites; or
15
(iii) apps;
16
that enable, or purport to enable, end-users to access class 1
17
material or class 2 material;
18
(zc) if:
19
(i) class 2 material is provided on a social media service;
20
and
21
(ii) the service is provided from a foreign country; and
22
(iii) the provider of the service has reasonable grounds to
23
believe that the material is hosted in Australia;
24
procedures to be followed to ensure the Commissioner is
25
notified of the material;
26
(zd) if:
27
(i) class 2 material is provided on a relevant electronic
28
service; and
29
(ii) the service is provided from a foreign country; and
30
(iii) the provider of the service has reasonable grounds to
31
believe that the material is hosted in Australia;
32
procedures to be followed to ensure the Commissioner is
33
notified of the material;
34
(ze) if:
35
(i) class 2 material is provided on a designated internet
36
service; and
37
Part 9
Online content scheme
Division 7
Industry codes and industry standards
Section 139
118
Online Safety Bill 2021
No. , 2021
(ii) the service is provided from a foreign country; and
1
(iii) the provider of the service has reasonable grounds to
2
believe that the material is hosted in Australia;
3
procedures to be followed to ensure the Commissioner is
4
notified of the material;
5
(zf) the referral to the Commissioner of complaints about matters,
6
where the complainant is dissatisfied with the way in which
7
the complaint was dealt with under the code or standard;
8
(zg) ensuring that end-users are provided with information, and
9
support services, relating to online safety for Australians;
10
(zh) the making and retention of material directed towards the
11
achievement of the objective of ensuring that, in the event
12
that new social media services are developed that could put at
13
risk the safety of children who are end-users of the services,
14
the Commissioner is informed about those services;
15
(zi) the making and retention of material directed towards the
16
achievement of the objective of ensuring that, in the event
17
that new relevant electronic services are developed that could
18
put at risk the safety of children who are end-users of the
19
services, the Commissioner is informed about those services;
20
(zj) the making and retention of material directed towards the
21
achievement of the objective of ensuring that, in the event
22
that new designated internet services are developed that
23
could put at risk the safety of children who are end-users of
24
the services, the Commissioner is informed about those
25
services.
26
139 Escalation of complaints
27
Scope
28
(1) This section applies if an industry code or industry standard deals
29
with the matter referred to in paragraph 138(3)(v), (w) or (x).
30
Escalation
31
(2) The industry code or industry standard, as the case may be, must
32
also deal with the matter referred to in paragraph 138(3)(zf).
33
Online content scheme
Part 9
Industry codes and industry standards
Division 7
Section 140
No. , 2021
Online Safety Bill 2021
119
Subdivision C--Industry codes
1
140 Registration of industry codes
2
Scope
3
(1) This section applies if:
4
(a) the Commissioner is satisfied that a body or association
5
represents a particular section of the online industry; and
6
(b) that body or association develops an industry code that
7
applies to participants in that section of the industry and deals
8
with one or more matters relating to the online activities of
9
those participants; and
10
(c) the body or association gives a copy of the code to the
11
Commissioner; and
12
(d) the Commissioner is satisfied that:
13
(i) to the extent to which the code deals with one or more
14
matters of substantial relevance to the community--the
15
code provides appropriate community safeguards for
16
that matter or those matters; and
17
(ii) to the extent to which the code deals with one or more
18
matters that are not of substantial relevance to the
19
community--the code deals with that matter or those
20
matters in an appropriate manner; and
21
(e) the Commissioner is satisfied that, before giving the copy of
22
the code to the Commissioner:
23
(i) the body or association published a draft of the code and
24
invited members of the public to make submissions to
25
the body or association about the draft within a
26
specified period; and
27
(ii) the body or association gave consideration to any
28
submissions that were received from members of the
29
public within that period; and
30
(f) the Commissioner is satisfied that, before giving the copy of
31
the code to the Commissioner:
32
(i) the body or association published a draft of the code and
33
invited participants in that section of the industry to
34
Part 9
Online content scheme
Division 7
Industry codes and industry standards
Section 141
120
Online Safety Bill 2021
No. , 2021
make submissions to the body or association about the
1
draft within a specified period; and
2
(ii) the body or association gave consideration to any
3
submissions that were received from participants in that
4
section of the industry within that period; and
5
(g) the Commissioner has been consulted about the development
6
of the code.
7
Registration
8
(2) The Commissioner may register the code by including it in the
9
Register of industry codes kept under section 149.
10
Period of consultation
11
(3) A period specified under subparagraph (1)(e)(i) or (1)(f)(i) must
12
run for at least 30 days.
13
Replacing industry codes
14
(4) If:
15
(a) an industry code (the
new code
) is registered under this
16
Division; and
17
(b) the new code is expressed to replace another industry code;
18
the other code ceases to be registered under this Division when the
19
new code is registered.
20
141 Commissioner may request codes
21
(1) If the Commissioner is satisfied that a body or association
22
represents a particular section of the online industry, the
23
Commissioner may, by written notice given to the body or
24
association, request the body or association to:
25
(a) develop an industry code that applies to participants in that
26
section of the industry and deals with one or more specified
27
matters relating to the online activities of those participants;
28
and
29
(b) give the Commissioner a copy of the code within the period
30
specified in the notice.
31
Online content scheme
Part 9
Industry codes and industry standards
Division 7
Section 142
No. , 2021
Online Safety Bill 2021
121
(2) The period specified in a notice under subsection (1) must run for
1
at least 120 days.
2
(3) The Commissioner may vary a notice under subsection (1) by
3
extending the period specified in the notice.
4
(4) Subsection (3) does not limit the application of subsection 33(3) of
5
the
Acts Interpretation Act 1901
.
6
(5) A notice under subsection (1) may specify indicative targets for
7
achieving progress in the development of the code (for example, a
8
target of 60 days to develop a preliminary draft of the code).
9
142 Replacement of industry codes
10
(1) Changes to an industry code are to be achieved by replacing the
11
code instead of varying the code.
12
(2) If the replacement code differs only in minor respects from the
13
original code, section 140 has effect, in relation to the registration
14
of the code, as if paragraphs 140(1)(e) and (f) of this Division had
15
not been enacted.
16
Note:
Paragraphs 140(1)(e) and (f) deal with submissions about draft codes.
17
143 Compliance with industry codes
18
(1) If:
19
(a) a person is a participant in a particular section of the online
20
industry; and
21
(b) the Commissioner is satisfied that the person has
22
contravened, or is contravening, an industry code that:
23
(i) is registered under this Division; and
24
(ii) applies to participants in that section of the industry;
25
the Commissioner may, by written notice given to the person,
26
direct the person to comply with the industry code.
27
(2) A person must comply with a direction under subsection (1).
28
Civil penalty for contravention of this subsection: 500 penalty
29
units.
30
Part 9
Online content scheme
Division 7
Industry codes and industry standards
Section 144
122
Online Safety Bill 2021
No. , 2021
144 Formal warnings--breach of industry codes
1
Scope
2
(1) This section applies to a person who is a participant in a particular
3
section of the online industry.
4
Warning
5
(2) The Commissioner may issue a formal warning if the person
6
contravenes an industry code registered under this Division.
7
Subdivision D--Industry standards
8
145 Commissioner may determine an industry standard
9
(1) The Commissioner may, by legislative instrument, determine a
10
standard that applies to participants in a particular section of the
11
online industry.
12
Note:
For variation and revocation, see subsection 33(3) of the
Acts
13
Interpretation Act 1901
.
14
(2) A standard under this section is to be known as an
industry
15
standard
.
16
(3) The Minister may, by legislative instrument, give the
17
Commissioner a written direction as to the exercise of the
18
Commissioner's powers under this section.
19
146 Compliance with industry standards
20
If:
21
(a) an industry standard that applies to participants in a particular
22
section of the online industry is registered under this
23
Division; and
24
(b) a person is a participant in that section of the online industry;
25
the person must comply with the industry standard.
26
Civil penalty:
500 penalty units.
27
Online content scheme
Part 9
Industry codes and industry standards
Division 7
Section 147
No. , 2021
Online Safety Bill 2021
123
147 Formal warnings--breach of industry standards
1
Scope
2
(1) This section applies to a person who is a participant in a particular
3
section of the online industry.
4
Warning
5
(2) The Commissioner may issue a formal warning if the person
6
contravenes an industry standard registered under this Division.
7
148 Public consultation on industry standards
8
(1) Before determining or varying an industry standard, the
9
Commissioner must:
10
(a) make a copy of the draft available on the Commissioner's
11
website; and
12
(b) publish a notice on the Commissioner's website:
13
(i) stating that the Commissioner has prepared a draft of
14
the industry standard or variation; and
15
(ii) inviting interested persons to give written comments
16
about the draft to the Commissioner within the period
17
specified in the notice.
18
(2) The period specified in the notice must run for at least 30 days
19
after the publication of the notice.
20
(3) Subsection (1) does not apply to a variation if the variation is of a
21
minor nature.
22
(4) If interested persons have given comments in accordance with a
23
notice under subsection (1), the Commissioner must have due
24
regard to those comments in determining or varying the industry
25
standard, as the case may be.
26
Part 9
Online content scheme
Division 7
Industry codes and industry standards
Section 149
124
Online Safety Bill 2021
No. , 2021
Subdivision E--Register of industry codes and industry
1
standards
2
149 Commissioner to maintain Register of industry codes and
3
industry standards
4
(1) The Commissioner is to maintain a Register in which the
5
Commissioner includes:
6
(a) all industry codes that the Commissioner decides to register
7
under this Division; and
8
(b) all industry standards; and
9
(c) all requests made under section 141; and
10
(d) all directions under section 143.
11
(2) The Register may be maintained by electronic means.
12
(3) The Register is to be made available for inspection on the
13
Commissioner's website.
14
Subdivision F--Miscellaneous
15
150 Industry standards prevail over inconsistent industry codes
16
If an industry code is:
17
(a) registered under this Division; and
18
(b) applicable to a person;
19
the code has no effect to the extent to which it is inconsistent with
20
an industry standard that is:
21
(c) registered under this Division; and
22
(d) applicable to the person.
23
Online content scheme
Part 9
Service provider determinations
Division 8
Section 151
No. , 2021
Online Safety Bill 2021
125
Division 8--Service provider determinations
1
151 Service provider determinations
2
(1) The Commissioner may, by legislative instrument, determine any
3
or all of the following rules:
4
(a) rules that apply to providers of social media services in
5
relation to the provision of social media services;
6
(b) rules that apply to providers of relevant electronic services in
7
relation to the provision of relevant electronic services;
8
(c) rules that apply to providers of designated internet services in
9
relation to the provision of designated internet services;
10
(d) rules that apply to hosting service providers in relation to the
11
provision of hosting services;
12
(e) rules that apply to internet service providers in relation to the
13
supply of internet carriage services.
14
(2) A determination under subsection (1) is called a
service provider
15
determination
.
16
(3) A service provider determination has effect only to the extent that:
17
(a) it is authorised by paragraph 51(v) of the Constitution (either
18
alone or when read together with paragraph 51(xxxix) of the
19
Constitution); or
20
(b) both:
21
(i) it is authorised by section 122 of the Constitution; and
22
(ii) it would have been authorised by paragraph 51(v) of the
23
Constitution (either alone or when read together with
24
paragraph 51(xxxix) of the Constitution) if section 51 of
25
the Constitution extended to the Territories.
26
(4) The Commissioner must not make a service provider determination
27
unless the determination relates to a matter specified in the
28
legislative rules.
29
(5) A service provider determination may make provision for or in
30
relation to a particular matter by empowering the Commissioner to
31
make decisions of an administrative character.
32
Part 9
Online content scheme
Division 8
Service provider determinations
Section 152
126
Online Safety Bill 2021
No. , 2021
152 Exemptions from service provider determinations
1
(1) The Minister may, by legislative instrument, determine any or all
2
of the following:
3
(a) that a specified provider of a social media service is exempt
4
from service provider determinations;
5
(b) that a specified provider of a relevant electronic service is
6
exempt from service provider determinations;
7
(c) that a specified provider of a designated internet service is
8
exempt from service provider determinations;
9
(d) that a specified hosting service provider is exempt from
10
service provider determinations;
11
(e) that a specified internet service provider is exempt from
12
service provider determinations.
13
(2) The Minister may, by legislative instrument, determine any or all
14
of the following:
15
(a) that a specified provider of a social media service is exempt
16
from a specified service provider determination;
17
(b) that a specified provider of a relevant electronic service is
18
exempt from a specified service provider determination;
19
(c) that a specified provider of a designated internet service is
20
exempt from a specified service provider determination;
21
(d) that a specified hosting service provider is exempt from a
22
specified service provider determination;
23
(e) that a specified internet service provider is exempt from a
24
specified service provider determination.
25
(3) A determination under this section may be unconditional or subject
26
to such conditions (if any) as are specified in the determination.
27
153 Compliance with service provider rules
28
A person must not contravene a service provider rule that applies
29
to the person.
30
Civil penalty:
500 penalty units.
31
Online content scheme
Part 9
Service provider determinations
Division 8
Section 154
No. , 2021
Online Safety Bill 2021
127
154 Remedial directions--breach of service provider rules
1
(1) This section applies if the Commissioner is satisfied that a person
2
has contravened, or is contravening, a service provider rule that
3
applies to the person.
4
(2) The Commissioner may give the person a written direction
5
requiring the person to take specified action directed towards
6
ensuring that the provider does not contravene the rule, or is
7
unlikely to contravene the rule, in the future.
8
(3) The following are examples of the kinds of direction that may be
9
given to a person under subsection (2):
10
(a) a direction that the person implement effective administrative
11
systems for monitoring compliance with a service provider
12
rule;
13
(b) a direction that the person implement a system designed to
14
give the person's employees, agents and contractors a
15
reasonable knowledge and understanding of the requirements
16
of a service provider rule, so far as those requirements affect
17
the employees, agents or contractors concerned.
18
(4) A person must comply with a direction under subsection (2).
19
Civil penalty for contravention of this subsection: 500 penalty
20
units.
21
155 Formal warnings--breach of service provider rules
22
The Commissioner may issue a formal warning to a person if the
23
Commissioner is satisfied that the person has contravened, or is
24
contravening, a service provider rule that applies to the person.
25
Part 9
Online content scheme
Division 9
Federal Court orders
Section 156
128
Online Safety Bill 2021
No. , 2021
Division 9--Federal Court orders
1
156 Federal Court may order a person to cease providing a social
2
media service
3
(1) If the Commissioner is satisfied that:
4
(a) a person is the provider of a social media service; and
5
(b) there were 2 or more occasions during the previous 12
6
months on which the person contravened a civil penalty
7
provision of this Part; and
8
(c) as a result of those contraventions, the continued operation of
9
that social media service represents a significant community
10
safety risk;
11
the Commissioner may apply to the Federal Court for an order that
12
the person cease providing that social media service.
13
(2) If the Federal Court is satisfied, on such an application, that:
14
(a) the person is the provider of a social media service; and
15
(b) there were 2 or more occasions during the previous 12
16
months on which the person contravened a civil penalty
17
provision of this Part; and
18
(c) as a result of those contraventions, the continued operation of
19
that social media service represents a significant community
20
safety risk;
21
the Federal Court may order the person to cease providing that
22
social media service.
23
157 Federal Court may order a person to cease providing a relevant
24
electronic service
25
(1) If the Commissioner is satisfied that:
26
(a) a person is the provider of a relevant electronic service; and
27
(b) there were 2 or more occasions during the previous 12
28
months on which the person contravened a civil penalty
29
provision of this Part; and
30
Online content scheme
Part 9
Federal Court orders
Division 9
Section 158
No. , 2021
Online Safety Bill 2021
129
(c) as a result of those contraventions, the continued operation of
1
that relevant electronic service represents a significant
2
community safety risk;
3
the Commissioner may apply to the Federal Court for an order that
4
the person cease providing that relevant electronic service.
5
(2) If the Federal Court is satisfied, on such an application, that:
6
(a) the person is the provider of a relevant electronic service; and
7
(b) there were 2 or more occasions during the previous 12
8
months on which the person contravened a civil penalty
9
provision of this Part; and
10
(c) as a result of those contraventions, the continued operation of
11
that relevant electronic service represents a significant
12
community safety risk;
13
the Federal Court may order the person to cease providing that
14
relevant electronic service.
15
158 Federal Court may order a person to cease providing a
16
designated internet service
17
(1) If the Commissioner is satisfied that:
18
(a) a person is the provider of a designated internet service; and
19
(b) there were 2 or more occasions during the previous 12
20
months on which the person contravened a civil penalty
21
provision of this Part; and
22
(c) as a result of those contraventions, the continued operation of
23
that designated internet service represents a significant
24
community safety risk;
25
the Commissioner may apply to the Federal Court for an order that
26
the person cease providing that designated internet service.
27
(2) If the Federal Court is satisfied, on such an application, that:
28
(a) the person is the provider of a designated internet service;
29
and
30
(b) there were 2 or more occasions during the previous 12
31
months on which the person contravened a civil penalty
32
provision of this Part; and
33
Part 9
Online content scheme
Division 9
Federal Court orders
Section 159
130
Online Safety Bill 2021
No. , 2021
(c) as a result of those contraventions, the continued operation of
1
that designated internet service represents a significant
2
community safety risk;
3
the Federal Court may order the person to cease providing that
4
designated internet service.
5
159 Federal Court may order a person to cease supplying an
6
internet carriage service
7
(1) If the Commissioner is satisfied that:
8
(a) a person is the supplier of an internet carriage service; and
9
(b) there were 2 or more occasions during the previous 12
10
months on which the person contravened a civil penalty
11
provision of this Part; and
12
(c) as a result of those contraventions, the continued operation of
13
that internet carriage service represents a significant
14
community safety risk;
15
the Commissioner may apply to the Federal Court for an order that
16
the person cease supplying that internet carriage service.
17
(2) If the Federal Court is satisfied, on such an application, that:
18
(a) the person is the supplier of an internet carriage service; and
19
(b) there were 2 or more occasions during the previous 12
20
months on which the person contravened a civil penalty
21
provision of this Part; and
22
(c) as a result of those contraventions, the continued operation of
23
that internet carriage service represents a significant
24
community safety risk;
25
the Federal Court may order the person to cease supplying that
26
internet carriage service.
27
Online content scheme
Part 9
Commissioner may obtain advice from the Classification Board
Division 10
Section 160
No. , 2021
Online Safety Bill 2021
131
Division 10--Commissioner may obtain advice from the
1
Classification Board
2
160 Commissioner may obtain advice from the Classification Board
3
(1) The Commissioner may request the Classification Board to:
4
(a) advise the Commissioner whether particular material is class
5
1 material; or
6
(b) advise the Commissioner whether particular material is class
7
2 material; or
8
(c) advise the Commissioner whether particular material is class
9
2 material covered by paragraph 107(1)(a); or
10
(d) advise the Commissioner whether particular material is class
11
2 material covered by paragraph 107(1)(b); or
12
(e) advise the Commissioner whether particular material is class
13
2 material covered by paragraph 107(1)(c); or
14
(f) advise the Commissioner whether particular material is class
15
2 material covered by paragraph 107(1)(d); or
16
(g) advise the Commissioner whether particular material is class
17
2 material covered by paragraph 107(1)(e); or
18
(h) advise the Commissioner whether particular material is class
19
2 material covered by paragraph 107(1)(f); or
20
(i) advise the Commissioner whether particular material is class
21
2 material covered by paragraph 107(1)(g); or
22
(j) advise the Commissioner whether particular material is class
23
2 material covered by paragraph 107(1)(h); or
24
(k) advise the Commissioner whether particular material is class
25
2 material covered by paragraph 107(1)(i); or
26
(l) advise the Commissioner whether particular material is class
27
2 material covered by paragraph 107(1)(j); or
28
(m) advise the Commissioner whether particular material is class
29
2 material covered by paragraph 107(1)(k); or
30
(n) advise the Commissioner whether particular material is class
31
2 material covered by paragraph 107(1)(l).
32
Part 9
Online content scheme
Division 10
Commissioner may obtain advice from the Classification Board
Section 160
132
Online Safety Bill 2021
No. , 2021
(2) The Classification Board may give the advice requested by the
1
Commissioner.
2
(3) Subsection (2) does not, by implication, limit the matters that may
3
be taken into account by the Commissioner in considering:
4
(a) whether particular material is class 1 material; or
5
(b) whether particular material is class 2 material; or
6
(c) whether particular material is class 2 material covered by
7
paragraph 107(1)(a); or
8
(d) whether particular material is class 2 material covered by
9
paragraph 107(1)(b); or
10
(e) whether particular material is class 2 material covered by
11
paragraph 107(1)(c); or
12
(f) whether particular material is class 2 material covered by
13
paragraph 107(1)(d); or
14
(g) whether particular material is class 2 material covered by
15
paragraph 107(1)(e); or
16
(h) whether particular material is class 2 material covered by
17
paragraph 107(1)(f); or
18
(i) whether particular material is class 2 material covered by
19
paragraph 107(1)(g); or
20
(j) whether particular material is class 2 material covered by
21
paragraph 107(1)(h); or
22
(k) whether particular material is class 2 material covered by
23
paragraph 107(1)(i); or
24
(l) whether particular material is class 2 material covered by
25
paragraph 107(1)(j); or
26
(m) whether particular material is class 2 material covered by
27
paragraph 107(1)(k); or
28
(n) whether particular material is class 2 material covered by
29
paragraph 107(1)(l).
30
Enforcement
Part 10
Section 161
No. , 2021
Online Safety Bill 2021
133
Part 10--Enforcement
1
2
161 Simplified outline of this Part
3
•
A civil penalty provision in this Act is enforceable under
4
Part 4 of the
Regulatory Powers (Standard Provisions) Act
5
2014
.
6
•
The following enforcement powers are available:
7
(a)
infringement notices;
8
(b)
enforceable undertakings;
9
(c)
injunctions.
10
162 Civil penalty provision
11
Enforceable civil penalty provision
12
(1) A civil penalty provision in this Act is enforceable under Part 4 of
13
the
Regulatory Powers (Standard Provisions) Act 2014
.
14
Note:
Part 4 of the
Regulatory Powers (Standard Provisions) Act 2014
15
allows a civil penalty provision to be enforced by obtaining an order
16
for a person to pay a pecuniary penalty for the contravention of the
17
provision.
18
Authorised applicant
19
(2) For the purposes of Part 4 of the
Regulatory Powers (Standard
20
Provisions) Act 2014
, the Commissioner is an authorised applicant
21
in relation to a civil penalty provision in this Act.
22
Relevant court
23
(3) For the purposes of Part 4 of the
Regulatory Powers (Standard
24
Provisions) Act 2014
, the Federal Court of Australia and the
25
Federal Circuit Court of Australia are relevant courts in relation to
26
a civil penalty provision in this Act.
27
Part 10
Enforcement
Section 163
134
Online Safety Bill 2021
No. , 2021
Extension to external Territories etc.
1
(4) Part 4 of the
Regulatory Powers (Standard Provisions) Act 2014
,
2
as it applies in relation to a civil penalty provision in this Act,
3
extends to:
4
(a) every external Territory; and
5
(b) acts, omissions, matters and things outside Australia.
6
163 Infringement notices
7
Provisions subject to an infringement notice
8
(1) The following provisions of this Act are subject to an infringement
9
notice under Part 5 of the
Regulatory Powers (Standard
10
Provisions) Act 2014
:
11
(a) section 50;
12
(b) section 53;
13
(c) section 57;
14
(d) section 60;
15
(e) section 67;
16
(f) section 75;
17
(g) section 80;
18
(h) section 83;
19
(i) section 91;
20
(j) section 111;
21
(k) section 116;
22
(l) section 121;
23
(m) section 125;
24
(n) section 129;
25
(o) section 143;
26
(p) section 146.
27
Note:
Part 5 of the
Regulatory Powers (Standard Provisions) Act 2014
28
creates a framework for using infringement notices in relation to
29
provisions.
30
Enforcement
Part 10
Section 164
No. , 2021
Online Safety Bill 2021
135
Infringement officer
1
(2) For the purposes of Part 5 of the
Regulatory Powers (Standard
2
Provisions) Act 2014
, a member of the staff of the ACMA
3
authorised, in writing, by the Commissioner for the purposes of
4
this subsection is an infringement officer in relation to the
5
provisions mentioned in subsection (1).
6
Relevant chief executive
7
(3) For the purposes of Part 5 of the
Regulatory Powers (Standard
8
Provisions) Act 2014
, the Commissioner is the relevant chief
9
executive in relation to the provisions mentioned in subsection (1).
10
(4) The relevant chief executive may, in writing, delegate any or all of
11
the relevant chief executive's powers and functions under Part 5 of
12
the
Regulatory Powers (Standard Provisions) Act 2014
to a person
13
who is:
14
(a) a member of the staff of the ACMA; and
15
(b) an SES employee or an acting SES employee.
16
(5) A person exercising powers or performing functions under a
17
delegation under subsection (4) must comply with any directions of
18
the relevant chief executive.
19
Extension to external Territories etc.
20
(6) Part 5 of the
Regulatory Powers (Standard Provisions) Act 2014
,
21
as it applies in relation to the provisions mentioned in
22
subsection (1), extends to:
23
(a) every external Territory; and
24
(b) acts, omissions, matters and things outside Australia.
25
164 Enforceable undertakings
26
Enforceable provisions
27
(1) The following provisions of this Act are enforceable under Part 6
28
of the
Regulatory Powers (Standard Provisions) Act 2014
:
29
(a) section 50;
30
Part 10
Enforcement
Section 164
136
Online Safety Bill 2021
No. , 2021
(b) section 53;
1
(c) section 57;
2
(d) section 60;
3
(e) section 67;
4
(f) section 75;
5
(g) section 80;
6
(h) section 83;
7
(i) section 91;
8
(j) section 103;
9
(k) section 111;
10
(l) section 116;
11
(m) section 121;
12
(n) section 125;
13
(o) section 129;
14
(p) section 143;
15
(q) section 146.
16
Authorised person
17
(2) The Commissioner is an authorised person in relation to the
18
provisions mentioned in subsection (1) for the purposes of Part 6 of
19
the
Regulatory Powers (Standard Provisions) Act 2014
.
20
Relevant court
21
(3) The Federal Court of Australia and the Federal Circuit Court of
22
Australia are relevant courts in relation to the provisions mentioned
23
in subsection (1) for the purposes of Part 6 of the
Regulatory
24
Powers (Standard Provisions) Act 2014
.
25
Extension to external Territories etc.
26
(4) Part 6 of the
Regulatory Powers (Standard Provisions) Act 2014
,
27
as it applies in relation to the provisions mentioned in
28
subsection (1), extends to:
29
(a) every external Territory; and
30
(b) acts, omissions, matters and things outside Australia.
31
Enforcement
Part 10
Section 165
No. , 2021
Online Safety Bill 2021
137
165 Injunctions
1
Enforceable provisions
2
(1) The following provisions are enforceable under Part 7 of the
3
Regulatory Powers (Standard Provisions) Act 2014
:
4
(a) section 50;
5
(b) section 53;
6
(c) section 57;
7
(d) section 60;
8
(e) section 67;
9
(f) section 71;
10
(g) section 75;
11
(h) section 80;
12
(i) section 83;
13
(j) section 91;
14
(j) section 103;
15
(l) section 111;
16
(m) section 116;
17
(n) section 121;
18
(o) section 125;
19
(p) section 129;
20
(q) section 143;
21
(r) section 146;
22
(s) section 195.
23
Authorised person
24
(2) The Commissioner is an authorised person in relation to the
25
provisions mentioned in subsection (1) for the purposes of Part 7 of
26
the
Regulatory Powers (Standard Provisions) Act 2014
.
27
Relevant court
28
(3) The Federal Court of Australia and the Federal Circuit Court of
29
Australia are relevant courts in relation to the provisions mentioned
30
Part 10
Enforcement
Section 165
138
Online Safety Bill 2021
No. , 2021
in subsection (1) for the purposes of Part 7 of the
Regulatory
1
Powers (Standard Provisions) Act 2014
.
2
Extension to external Territories etc.
3
(4) Part 7 of the
Regulatory Powers (Standard Provisions) Act 2014
,
4
as it applies in relation to the provisions mentioned in
5
subsection (1), extends to:
6
(a) every external Territory; and
7
(b) acts, omissions, matters and things outside Australia.
8
Administrative provisions relating to the Commissioner
Part 11
Introduction
Division 1
Section 166
No. , 2021
Online Safety Bill 2021
139
Part 11--Administrative provisions relating to the
1
Commissioner
2
Division 1--Introduction
3
166 Simplified outline of this Part
4
•
The Commissioner is to be appointed by the Minister.
5
•
The Commissioner may delegate the Commissioner's
6
functions and powers.
7
•
The Commissioner must prepare an annual report.
8
•
The ACMA must assist the Commissioner.
9
•
The Minister may give directions to the Commissioner.
10
Part 11
Administrative provisions relating to the Commissioner
Division 2
Appointment of the Commissioner
Section 167
140
Online Safety Bill 2021
No. , 2021
Division 2--Appointment of the Commissioner
1
167 Appointment of the Commissioner
2
(1) The Commissioner is to be appointed by the Minister by written
3
instrument.
4
(2) A person is not eligible for appointment as the Commissioner
5
unless the Minister is satisfied that the person has:
6
(a) substantial experience or knowledge; and
7
(b) significant standing;
8
in at least one of the following fields:
9
(c) the operation of social media services;
10
(d) the operation of the internet industry;
11
(e) public engagement on issues relating to online safety;
12
(f) public policy in relation to the communications sector.
13
(3) The Commissioner holds office on a full-time basis.
14
168 Period of appointment for the Commissioner
15
The Commissioner holds office for the period specified in the
16
instrument of appointment. The period must not exceed 5 years.
17
Note:
The Commissioner may be reappointed: see the
Acts Interpretation
18
Act 1901
.
19
169 Acting appointments
20
(1) The Minister may appoint a person to act as the Commissioner:
21
(a) during a vacancy in the office of the Commissioner (whether
22
or not an appointment has previously been made to the
23
office); or
24
(b) during any period, or during all periods, when the
25
Commissioner:
26
(i) is absent from duty or from Australia; or
27
(ii) is, for any reason, unable to perform the duties of the
28
office.
29
Administrative provisions relating to the Commissioner
Part 11
Appointment of the Commissioner
Division 2
Section 170
No. , 2021
Online Safety Bill 2021
141
Note:
For rules that apply to acting appointments, see section 33A of the
1
Acts Interpretation Act 1901
.
2
(2) A person is not eligible for appointment to act as the
3
Commissioner unless the person is eligible for appointment as the
4
Commissioner.
5
170 Application of finance law
6
For the purposes of the finance law (within the meaning of the
7
Public Governance, Performance and Accountability Act 2013
),
8
the Commissioner is an official of the ACMA.
9
Part 11
Administrative provisions relating to the Commissioner
Division 3
Terms and conditions for the Commissioner
Section 171
142
Online Safety Bill 2021
No. , 2021
Division 3--Terms and conditions for the Commissioner
1
171 Remuneration and allowances
2
(1) The Commissioner is to be paid the remuneration that is
3
determined by the Remuneration Tribunal. If no determination of
4
that remuneration by the Tribunal is in operation, the
5
Commissioner is to be paid the remuneration that is prescribed by
6
the legislative rules.
7
(2) The Commissioner is to be paid the allowances that are prescribed
8
by the legislative rules.
9
(3) This section has effect subject to the
Remuneration Tribunal Act
10
1973
.
11
172 Leave of absence
12
(1) The Commissioner has the recreation leave entitlements that are
13
determined by the Remuneration Tribunal.
14
(2) The Minister may grant the Commissioner leave of absence (other
15
than recreation leave) on the terms and conditions, as to
16
remuneration or otherwise, that the Minister determines.
17
173 Outside employment
18
The Commissioner must not engage in paid employment outside
19
the duties of the Commissioner's office without the Minister's
20
approval.
21
174 Disclosure of interests to the Minister
22
The Commissioner must give written notice to the Minister of all
23
interests, pecuniary or otherwise, that the Commissioner has or
24
acquires, and that conflict or could conflict with the proper
25
performance of the Commissioner's functions.
26
Administrative provisions relating to the Commissioner
Part 11
Terms and conditions for the Commissioner
Division 3
Section 175
No. , 2021
Online Safety Bill 2021
143
175 Resignation
1
(1) The Commissioner may resign the Commissioner's appointment
2
by giving the Minister a written resignation.
3
(2) The resignation takes effect on the day it is received by the
4
Minister or, if a later day is specified in the resignation, on that
5
later day.
6
176 Termination of appointment
7
(1) The Minister may terminate the appointment of the Commissioner:
8
(a) for misbehaviour; or
9
(b) if the Commissioner is unable to perform the duties of the
10
Commissioner's office because of physical or mental
11
incapacity.
12
(2) The Minister may terminate the appointment of the Commissioner
13
if:
14
(a) the Commissioner:
15
(i) becomes bankrupt; or
16
(ii) applies to take the benefit of any law for the relief of
17
bankrupt or insolvent debtors; or
18
(iii) compounds with the Commissioner's creditors; or
19
(iv) makes an assignment of the Commissioner's
20
remuneration for the benefit of the Commissioner's
21
creditors; or
22
(b) the Commissioner is absent, except on leave of absence, for
23
14 consecutive days or for 28 days in any 12 months; or
24
(c) the Commissioner engages, except with the Minister's
25
approval, in paid employment outside the duties of the
26
Commissioner's office (see section 173); or
27
(d) the Commissioner fails, without reasonable excuse, to
28
comply with section 174.
29
Part 11
Administrative provisions relating to the Commissioner
Division 3
Terms and conditions for the Commissioner
Section 177
144
Online Safety Bill 2021
No. , 2021
177 Other terms and conditions
1
The Commissioner holds office on the terms and conditions (if
2
any) in relation to matters not covered by this Act that are
3
determined by the Minister.
4
Administrative provisions relating to the Commissioner
Part 11
Other matters
Division 4
Section 178
No. , 2021
Online Safety Bill 2021
145
Division 4--Other matters
1
178 Supplementary powers
2
(1) The powers of the Commissioner include, but are not limited to,
3
the power to enter into contracts.
4
(2) Any contract entered into by the Commissioner is to be entered
5
into on behalf of the Commonwealth.
6
(3) Any real or personal property held by the Commissioner
is held for
7
and on behalf of the Commonwealth.
8
(4) Any money received by the Commissioner is received for and on
9
behalf of the Commonwealth.
10
(5) The Commissioner cannot hold real or personal property, or
11
money, on trust for a person other than the Commonwealth.
12
Note:
The Commonwealth may hold real or personal property or money on
13
trust.
14
(6) To avoid doubt, a right to sue is taken not to be personal property
15
for the purposes of subsection (3).
16
179 Commissioner's liabilities are Commonwealth liabilities
17
(1) Any financial liabilities of the Commissioner are taken to be
18
liabilities of the Commonwealth.
19
(2) For the purposes of this section,
financial liability
means a liability
20
to pay a person an amount, where the amount, or the method for
21
working out the amount, has been determined.
22
180 Commissioner has privileges and immunities of the Crown
23
The Commissioner has the privileges and immunities of the Crown
24
in right of the Commonwealth.
25
Part 11
Administrative provisions relating to the Commissioner
Division 4
Other matters
Section 181
146
Online Safety Bill 2021
No. , 2021
181 Delegation by the Commissioner to a member of the staff of the
1
ACMA etc.
2
(1) The Commissioner may, by writing, delegate any or all of the
3
Commissioner's functions or powers to:
4
(a) a member of the staff of the ACMA; or
5
(b) a person whose services are made available to the ACMA
6
under paragraph 55(1)(a) of the
Australian Communications
7
and Media Authority Act 2005
;
8
if the member or person is:
9
(c) an SES employee; or
10
(d) an acting SES employee; or
11
(e) an APS employee who holds or performs the duties of:
12
(i) an Executive Level 1 or 2 position; or
13
(ii) an equivalent position; or
14
(f) an APS employee who holds or performs the duties of:
15
(i) an APS 6 position; or
16
(ii) an equivalent position.
17
Note:
The expressions
SES employee
and
acting SES employee
are defined
18
in the
Acts Interpretation Act 1901
.
19
(2) A delegate must comply with any written directions of the
20
Commissioner.
21
(3) Subsection (1) does not apply to a power to make, vary or revoke a
22
legislative instrument.
23
182 Delegation by the Commissioner to a contractor engaged by the
24
Commissioner
25
(1) The Commissioner may, by writing, delegate any or all of the
26
Commissioner's functions or powers to a person engaged by the
27
Commissioner under subsection 185(1).
28
(2) A delegate must comply with any written directions of the
29
Commissioner.
30
(3) Subsection (1) does not apply to a power to make, vary or revoke a
31
legislative instrument.
32
Administrative provisions relating to the Commissioner
Part 11
Other matters
Division 4
Section 182
No. , 2021
Online Safety Bill 2021
147
(4) Subsection (1) does not apply to a function or power conferred by
1
any of the following provisions:
2
(a) section 49;
3
(b) section 56;
4
(c) section 65;
5
(d) section 66;
6
(e) section 70;
7
(f) section 77;
8
(g) section 78;
9
(h) section 79;
10
(i) section 83;
11
(j) section 88;
12
(k) section 89;
13
(l) section 90;
14
(m) section 99;
15
(n) section 109;
16
(o) section 110;
17
(p) section 114;
18
(q) section 115;
19
(r) section 119;
20
(s) section 120;
21
(t) section 124;
22
(u) section 128;
23
(v) section 143;
24
(w) section 154;
25
(x) section 156;
26
(y) section 157;
27
(z) section 158;
28
(za) section 159;
29
(zb) section 194;
30
(zc) section 199;
31
(zd) section 200;
32
(ze) section 203.
33
Part 11
Administrative provisions relating to the Commissioner
Division 4
Other matters
Section 183
148
Online Safety Bill 2021
No. , 2021
(5) Subsection (1) does not apply to a function or power conferred by
1
the
Regulatory Powers (Standard Provisions) Act 2014
.
2
183 Annual report
3
The Commissioner must, as soon as practicable after the end of
4
each financial year, prepare and give to the Minister, for
5
presentation to the Parliament, a report on the operations of the
6
Commissioner during that year.
7
Note:
See also section 34C of the
Acts Interpretation Act 1901
, which
8
contains extra rules about annual reports.
9
184 Assistance to the Commissioner
10
(1) The ACMA must:
11
(a) assist the Commissioner to perform the Commissioner's
12
functions and exercise the Commissioner's powers; and
13
(b) do so to such extent as the Commissioner reasonably
14
requires.
15
(2) The assistance may include the following:
16
(a) the provision of advice;
17
(b) the making available of resources and facilities.
18
Members of the staff of the ACMA
19
(3) The ACMA must:
20
(a) make available members of the staff of the ACMA to assist
21
the Commissioner to perform the Commissioner's functions
22
and exercise the Commissioner's powers, so long as the
23
Commissioner considers that those members have the skills,
24
qualifications or experience necessary to so assist the
25
Commissioner; and
26
(b) do so to such extent as the Commissioner reasonably
27
requires.
28
(4) When performing services for the Commissioner, a member of the
29
staff of the ACMA is subject to the directions of the
30
Commissioner.
31
Administrative provisions relating to the Commissioner
Part 11
Other matters
Division 4
Section 185
No. , 2021
Online Safety Bill 2021
149
Ministerial directions
1
(5) The Minister may, by legislative instrument, give directions to the
2
ACMA in relation to the performance of its functions, or the
3
exercise of its powers, under this section.
4
Note 1:
For variation and revocation, see subsection 33(3) of the
Acts
5
Interpretation Act 1901
.
6
Note 2:
Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the
7
Legislation Act 2003
do not apply to the direction (see regulations
8
made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that
9
Act).
10
(6) The ACMA must comply with a direction under subsection (5).
11
Deemed members of the staff of the ACMA
12
(7) For the purposes of this section, if a person is an officer or
13
employee whose services are made available to the ACMA under
14
paragraph 55(1)(a) of the
Australian Communications and Media
15
Authority Act 2005
,
the person is taken to be a member of the staff
16
of the ACMA.
17
185 Contractors engaged by the Commissioner
18
(1) The Commissioner may, on behalf of the Commonwealth, engage
19
persons to assist the Commissioner to perform the Commissioner's
20
functions and exercise the Commissioner's powers.
21
(2) The persons are to be engaged on the terms and conditions that the
22
Commissioner determines in writing.
23
(3) When performing services for the Commissioner, a person engaged
24
under subsection (1) is subject to the directions of the
25
Commissioner.
26
186 Commissioner not subject to direction by the ACMA etc.
27
To avoid doubt, the Commissioner is not subject to direction by:
28
(a) the ACMA; or
29
(b) a member or associate member of the ACMA; or
30
(c) a member of the staff of the ACMA;
31
Part 11
Administrative provisions relating to the Commissioner
Division 4
Other matters
Section 187
150
Online Safety Bill 2021
No. , 2021
in relation to the performance of a function, or the exercise of a
1
power, by the Commissioner.
2
187 Consultants
3
(1) The Commissioner may, on behalf of the Commonwealth, engage
4
persons having suitable qualifications and experience as
5
consultants to the Commissioner.
6
(2) The consultants are to be engaged on the terms and conditions that
7
the Commissioner determines in writing.
8
188 Minister may give directions to the Commissioner
9
(1) The Minister may, by legislative instrument, give directions to the
10
Commissioner about the performance of the Commissioner's
11
functions or the exercise of the Commissioner's powers.
12
Note 1:
For variation and revocation, see subsection 33(3) of the
Acts
13
Interpretation Act 1901
.
14
Note 2:
Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the
15
Legislation Act 2003
do not apply to the direction (see regulations
16
made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that
17
Act).
18
(2) A direction under subsection (1) must be of a general nature only.
19
(3) The Commissioner must comply with a direction under
20
subsection (1).
21
Online Safety Special Account
Part 12
Section 189
No. , 2021
Online Safety Bill 2021
151
Part 12--Online Safety Special Account
1
2
189 Simplified outline of this Part
3
•
The Online Safety Special Account is continued in existence.
4
190 Online Safety Special Account
5
(1) The Online Safety Special Account is continued in existence.
6
(2) The Account is a special account for the purposes of the
Public
7
Governance, Performance and Accountability Act 2013
.
8
(3) The Account is to be administered by the ACMA.
9
(4) An amount must not be debited from the Account without the
10
written approval of the Commissioner.
11
191 Credits to the Account
12
Determination
13
(1) The Minister may, by writing, determine that a specified amount is
14
to be:
15
(a) debited against the appropriation for the ACMA
16
departmental item in a specified Appropriation Act; and
17
(b) credited to the Online Safety Special Account.
18
(2) A determination under subsection (1) is a legislative instrument,
19
but section 42 (disallowance) of the
Legislation Act 2003
does not
20
apply to the determination.
21
ACMA departmental item
22
(3) For the purposes of the application of this section to an
23
Appropriation Act,
ACMA departmental item
means a
24
departmental item (within the meaning of that Act) that relates to
25
the ACMA.
26
Part 12
Online Safety Special Account
Section 192
152
Online Safety Bill 2021
No. , 2021
192 Purposes of the Account
1
The purposes of the Online Safety Special Account are as follows:
2
(a) to enhance online safety for Australians;
3
(b) to make grants under paragraph 27(1)(g);
4
(c) to pay:
5
(i) remuneration, and other employment-related costs and
6
expenses, in respect of APS employees whose duties
7
relate to the performance of the Commissioner's
8
functions or the exercise of the Commissioner's powers;
9
and
10
(ii) any other costs, expenses and other obligations incurred
11
by the Commonwealth in connection with the
12
performance of the Commissioner's functions or the
13
exercise of the Commissioner's powers.
14
Note:
See section 80 of the
Public Governance, Performance and
15
Accountability Act 2013
(which deals with special accounts).
16
Information-gathering powers
Part 13
Section 193
No. , 2021
Online Safety Bill 2021
153
Part 13--Information-gathering powers
1
2
193 Simplified outline of this Part
3
•
The Commissioner may obtain the following information
4
about an end-user of a social media service, relevant
5
electronic service or designated internet service:
6
(a)
information about the identity of the end-user;
7
(b)
the contact details of the end-user.
8
194 Commissioner may obtain end-user identity information or
9
contact details
10
Scope
11
(1) This section applies to a person if:
12
(a) the person is the provider of:
13
(i) a social media service; or
14
(ii) a relevant electronic service; or
15
(iii) a designated internet service; and
16
(b) the Commissioner believes on reasonable grounds that the
17
person has:
18
(i) information about the identity of an end-user of the
19
service; or
20
(ii) contact details of an end-user of the service; and
21
(c) the Commissioner believes on reasonable grounds that the
22
information is, or the contact details are, relevant to the
23
operation of this Act.
24
Requirement
25
(2) The Commissioner may, by written notice given to the person,
26
require the person:
27
Part 13
Information-gathering powers
Section 195
154
Online Safety Bill 2021
No. , 2021
(a) if subparagraph (1)(b)(i) applies--to give to the
1
Commissioner, within the period and in the manner and form
2
specified in the notice, any such information; or
3
(b) if subparagraph (1)(b)(ii) applies--to give to the
4
Commissioner, within the period and in the manner and form
5
specified in the notice, any such contact details.
6
195 Compliance with notice
7
A person must comply with a requirement under section 194 to the
8
extent that the person is capable of doing so.
9
Civil penalty:
100 penalty units.
10
196 Self-incrimination
11
(1) A person is not excused from giving information or contact details
12
under section 194 on the ground that the information or contact
13
details might tend to incriminate the person.
14
(2) However, in the case of an individual:
15
(a) the information or contact details given; or
16
(b) giving the information or contact details; or
17
(c) any information, document or thing obtained as a direct or
18
indirect consequence of giving the information or contact
19
details;
20
is not admissible in evidence against the individual:
21
(d) in civil proceedings for the recovery of a penalty (other than
22
proceedings for the recovery of a penalty under section 195);
23
or
24
(e) in criminal proceedings (other than proceedings for an
25
offence against section 137.1 or 137.2 of the
Criminal Code
26
that relates to this Part).
27
(3) If, at general law, an individual would otherwise be able to claim
28
the privilege against self-exposure to a penalty (other than a
29
penalty for an offence) in relation to giving information or contact
30
details under section 194, the individual is not excused from giving
31
information or contact details under that section on that ground.
32
Information-gathering powers
Part 13
Section 196
No. , 2021
Online Safety Bill 2021
155
Note:
A body corporate is not entitled to claim the privilege against
1
self-exposure to a penalty.
2
Part 14
Investigative powers
Section 197
156
Online Safety Bill 2021
No. , 2021
Part 14--Investigative powers
1
2
197 Simplified outline of this Part
3
•
The Commissioner may exercise certain powers for the
4
purposes of an investigation.
5
198 Application of this Part
6
This Part applies to an investigation by the Commissioner under
7
section 31, 34, 37 or 42.
8
199 Notice requiring appearance for examination
9
For the purposes of an investigation by the Commissioner, the
10
Commissioner may give a written notice to a person summoning
11
the person:
12
(a) to attend before:
13
(i) the Commissioner; or
14
(ii) a delegate of the Commissioner named in the notice;
15
to produce documents or to answer questions; or
16
(b) to provide documents or other information to the
17
Commissioner;
18
relevant to the subject matter of the investigation.
19
200 Examination on oath or affirmation
20
(1) If a person is summoned to attend before the Commissioner or a
21
delegate of the Commissioner, the Commissioner or delegate may
22
examine the person on oath or affirmation and, for that purpose:
23
(a) may require the person to take an oath or make an
24
affirmation; and
25
(b) may administer an oath or affirmation to the person.
26
Investigative powers
Part 14
Section 201
No. , 2021
Online Safety Bill 2021
157
(2) The oath or affirmation is to be an oath or affirmation that the
1
statements the person will make will be true to the best of the
2
person's knowledge or belief.
3
(3) The Commissioner or delegate may require the person to answer a
4
question that is put to the person at an examination and that is
5
relevant to a matter that the Commissioner is investigating or is to
6
investigate.
7
201 Examination to take place in private
8
The examination of a person for the purposes of an investigation
9
must be conducted in private, but the person is entitled to have an
10
adviser present at the examination.
11
202 Record to be made of examination
12
(1) If a person is examined by the Commissioner or a delegate of the
13
Commissioner, a record must be made of the examination and the
14
person is entitled to be given a written copy of the record.
15
(2) If the record of the examination of a person is made in electronic
16
form, the person is, if the person so requests, to be given a copy of
17
the record in that form.
18
203 Production of documents for inspection
19
The Commissioner may, by written notice given to a person,
20
require the person:
21
(a) to make available for inspection by:
22
(i) the Commissioner; or
23
(ii) a delegate of the Commissioner;
24
any documents in the possession of the person that may
25
contain information relevant to the subject matter of an
26
investigation by the Commissioner; and
27
(b) to permit the Commissioner or the delegate, as the case may
28
be, to make copies of any such documents.
29
Part 14
Investigative powers
Section 204
158
Online Safety Bill 2021
No. , 2021
204 Protection of persons giving evidence
1
A person who gives evidence or produces documents at an
2
investigation by the Commissioner has the same protection as a
3
witness in a proceeding in the High Court.
4
205 Non-compliance with requirement to give evidence
5
(1) A person required to answer a question, to give evidence or to
6
produce documents under this Part must not:
7
(a) when required to take an oath or make an affirmation, refuse
8
or fail to take the oath or make the affirmation; or
9
(b) refuse or fail to answer a question that the person is required
10
to answer; or
11
(c) refuse or fail to produce a document that the person is
12
required to produce.
13
Penalty: Imprisonment for 12 months.
14
(2) A person required to answer a question, to give evidence or to
15
produce documents under this Part must not:
16
(a) when required to take an oath or make an affirmation, refuse
17
or fail to take the oath or make the affirmation; or
18
(b) refuse or fail to answer a question that the person is required
19
to answer; or
20
(c) refuse or fail to produce a document that the person is
21
required to produce.
22
Civil penalty:
100 penalty units.
23
(3) Subsections (1) and (2) do not apply if the person has a reasonable
24
excuse.
25
Note:
A defendant bears an evidential burden in relation to the matters
26
mentioned in this subsection: see subsection 13.3(3) of the
Criminal
27
Code
and section 96 of the
Regulatory Powers (Standard Provisions)
28
Act 2014
.
29
(4) Subsections (1) and (2) do not apply to a refusal to answer a
30
question, or a refusal to produce a document, if the answer to the
31
question or the production of the document would tend to
32
incriminate the person.
33
Investigative powers
Part 14
Section 205
No. , 2021
Online Safety Bill 2021
159
Note:
A defendant bears an evidential burden in relation to the matters
1
mentioned in this subsection: see subsection 13.3(3) of the
Criminal
2
Code
and section 96 of the
Regulatory Powers (Standard Provisions)
3
Act 2014
.
4
(5) Subsections (1) and (2) do not apply if:
5
(a) the person is a journalist; and
6
(b) the answer to the question or the production of the document
7
would tend to disclose the identity of a person who supplied
8
information in confidence to the journalist.
9
Part 15
Disclosure of information
Section 206
160
Online Safety Bill 2021
No. , 2021
Part 15--Disclosure of information
1
2
206 Simplified outline of this Part
3
•
The Commissioner may disclose information in certain
4
circumstances.
5
Note:
See also section 224 (referral of matters to law enforcement agencies).
6
207 Scope
7
This Part applies to information that was obtained by the
8
Commissioner as a result of the performance of a function, or the
9
exercise of a power, conferred on the Commissioner by or under
10
this Act.
11
208 Disclosure to Minister
12
The Commissioner may disclose information to the Minister.
13
209 Disclosure to Secretary, or APS employees, for advising the
14
Minister
15
For the purpose of advising the Minister, the Commissioner may
16
disclose information to:
17
(a) the Secretary; or
18
(b) an APS employee in the Department who is authorised, in
19
writing, by the Secretary for the purposes of this section.
20
210 Disclosure to a member of the staff of the ACMA etc.
21
The Commissioner may disclose information to:
22
(a) a member of the staff of the ACMA; or
23
(b) an officer or employee whose services are made available to
24
the ACMA under paragraph 55(1)(a) of the
Australian
25
Communications and Media Authority Act 2005
; or
26
Disclosure of information
Part 15
Section 211
No. , 2021
Online Safety Bill 2021
161
(c) a person engaged under subsection 185(1); or
1
(d) a consultant engaged under section 187;
2
for purposes relating to the performance of the Commissioner's
3
functions or the exercise of the Commissioner's powers.
4
211 Disclosure to Royal Commissions
5
(1) The Commissioner may disclose information to a Royal
6
Commission (within the meaning of the
Royal Commissions Act
7
1902
).
8
(2) The Commissioner may, by writing, impose conditions to be
9
complied with in relation to information disclosed under
10
subsection (1).
11
(3) An instrument made under subsection (2) that imposes conditions
12
relating to one particular disclosure identified in the instrument is
13
not a legislative instrument.
14
(4) Otherwise, an instrument made under subsection (2) is a legislative
15
instrument.
16
212 Disclosure to certain authorities
17
(1) The Commissioner may disclose information to any of the
18
following authorities if the Commissioner is satisfied that the
19
information will enable or assist the authority to perform or
20
exercise any of the authority's functions or powers:
21
(a) the ACMA;
22
(b) the National Children's Commissioner;
23
(c) the Office of the Australian Information Commissioner;
24
(d) the Secretary of the Department administered by the Minister
25
administering the
Classification (Publications, Films and
26
Computer Games) Act 1995
or an APS employee in that
27
Department whose duties relate to that Act;
28
(e) the Australian Federal Police;
29
(f) the Director of Public Prosecutions;
30
(g) an authority of a State or Territory responsible for enforcing
31
one or more laws of the State or Territory;
32
Part 15
Disclosure of information
Section 213
162
Online Safety Bill 2021
No. , 2021
(h) an authority of a foreign country responsible for regulating
1
either or both of the following matters:
2
(i) matters relating to the capacity of individuals to use
3
social media services, relevant electronic services and
4
designated internet services in a safe manner;
5
(ii) matters relating to material that is accessible to, or
6
delivered to, the end-users of social media services,
7
relevant electronic services and designated internet
8
services;
9
(i) an authority of a foreign country responsible for enforcing
10
one or more laws of the foreign country relating to either or
11
both of the following matters:
12
(i) matters relating to the capacity of individuals to use
13
social media services, relevant electronic services and
14
designated internet services in a safe manner;
15
(ii) matters relating to material that is accessible to, or
16
delivered to, the end-users of social media services,
17
relevant electronic services and designated internet
18
services.
19
(2) The Commissioner may, by writing, impose conditions to be
20
complied with in relation to information disclosed under
21
subsection (1).
22
(3) An instrument made under subsection (2) that imposes conditions
23
relating to one particular disclosure identified in the instrument is
24
not a legislative instrument.
25
(4) Otherwise, an instrument made under subsection (2) is a legislative
26
instrument.
27
213 Disclosure to teachers or school principals
28
(1) The Commissioner may disclose information to a teacher or school
29
principal if the Commissioner is satisfied that the information will
30
assist in the resolution of a complaint made under section 30.
31
(2) The Commissioner may, by writing, impose conditions to be
32
complied with in relation to information disclosed under
33
subsection (1).
34
Disclosure of information
Part 15
Section 214
No. , 2021
Online Safety Bill 2021
163
(3) An instrument made under subsection (2) that imposes conditions
1
relating to one particular disclosure identified in the instrument is
2
not a legislative instrument.
3
(4) Otherwise, an instrument made under subsection (2) is a legislative
4
instrument.
5
214 Disclosure to parents or guardians
6
(1) The Commissioner may disclose information to a parent or
7
guardian of an Australian child if the Commissioner is satisfied
8
that the information will assist in the resolution of a complaint
9
made under section 30.
10
(2) The Commissioner may, by writing, impose conditions to be
11
complied with in relation to information disclosed under
12
subsection (1).
13
(3) An instrument made under subsection (2) that imposes conditions
14
relating to one particular disclosure identified in the instrument is
15
not a legislative instrument.
16
(4) Otherwise, an instrument made under subsection (2) is a legislative
17
instrument.
18
215 Disclosure with consent
19
The Commissioner may disclose information that relates to the
20
affairs of a person if:
21
(a) the person has consented to the disclosure; and
22
(b) the disclosure is in accordance with that consent.
23
216 Disclosure of publicly available information
24
The Commissioner may disclose information if it is already
25
publicly available.
26
217 Disclosure of summaries and statistics
27
The Commissioner may disclose:
28
(a) summaries of de-identified information; and
29
Part 15
Disclosure of information
Section 218
164
Online Safety Bill 2021
No. , 2021
(b) statistics derived from de-identified information.
1
218 Relationship with Parts 13 and 15 of the
Telecommunications
2
Act 1997
3
This Part does not authorise a disclosure of information that is
4
prohibited by Part 13 or 15 of the
Telecommunications Act 1997
.
5
Miscellaneous
Part 16
Section 219
No. , 2021
Online Safety Bill 2021
165
Part 16--Miscellaneous
1
2
219 Simplified outline of this Part
3
•
This Part deals with miscellaneous matters, such as review of
4
decisions and legislative rules.
5
220 Review of decisions
6
Notice under section 49 or 56
7
(1) An application may be made to the Administrative Appeals
8
Tribunal for a review of a decision of the Commissioner to give a
9
notice under section 49 or 56.
10
Removal notice--cyber-bulling, intimate images and cyber-abuse
11
(2) An application may be made to the Administrative Appeals
12
Tribunal for a review of a decision of the Commissioner under
13
section 65, 77, 78, 88 or 89 to give a removal notice to the provider
14
of:
15
(a) a social media service; or
16
(b) a relevant electronic service; or
17
(c) a designated internet service.
18
(3) An application under subsection (2) may only be made by:
19
(a) the provider of the social media service, relevant electronic
20
service or designated internet service; or
21
(b) if the material that is the subject of the notice was posted on
22
the service by an end-user of the service--the end-user.
23
(4) An application may be made to the Administrative Appeals
24
Tribunal for a review of a decision of the Commissioner to refuse
25
to give the provider of:
26
(a) a social media service; or
27
(b) a relevant electronic service; or
28
Part 16
Miscellaneous
Section 220
166
Online Safety Bill 2021
No. , 2021
(c) a designated internet service;
1
a section 65, 77, 78, 88 or 89 removal notice that relates to material
2
provided on the service.
3
(5) An application under subsection (4) may only be made:
4
(a) by a person who made a section 30, 32 or 36 complaint about
5
the material provided on the service; or
6
(b) in the case of a refusal to give a section 65, 88 or 89 removal
7
notice--by, or with the consent of, the person who was the
8
target of the material provided on the service; or
9
(c) in the case of a refusal to give a section 77 removal notice
10
that relates to an intimate image of a person--by, or with the
11
consent of, that person.
12
(6) An application may be made to the Administrative Appeals
13
Tribunal for a review of a decision of the Commissioner under
14
section 66, 79 or 90 to give a removal notice to a hosting service
15
provider.
16
(7) An application under subsection (6) may only be made by:
17
(a) the hosting service provider; or
18
(b) if the material that is the subject of the notice was posted on
19
the service by an end-user of the service--the end-user.
20
(8) An application may be made to the Administrative Appeals
21
Tribunal for a review of a decision of the Commissioner to refuse
22
to give a hosting service provider a section 66, 79 or 90 removal
23
notice that relates to material hosted by the provider.
24
(9) An application under subsection (8) may only be made:
25
(a) by a person who made a section 30, 32 or 36 complaint about
26
the material; or
27
(b) in the case of a refusal to give a section 66 or 90 removal
28
notice--by, or with the consent of, the person who was the
29
target of the material provided on the service; or
30
(c) in the case of a refusal to give a section 79 removal notice
31
that relates to an intimate image of a person--by, or with the
32
consent of, that person.
33
Miscellaneous
Part 16
Section 220
No. , 2021
Online Safety Bill 2021
167
End-user notice
1
(10) An application may be made to the Administrative Appeals
2
Tribunal for a review of a decision of the Commissioner under
3
section 70 to give an end-user notice.
4
Removal notice--online content scheme
5
(11) An application may be made to the Administrative Appeals
6
Tribunal for a review of a decision of the Commissioner under
7
section 109, 110, 114 or 115 to give a removal notice.
8
Remedial direction
9
(12) An application may be made to the Administrative Appeals
10
Tribunal for a review of a decision of the Commissioner under
11
section 83 to give a remedial direction.
12
Blocking notice
13
(13) An application may be made to the Administrative Appeals
14
Tribunal for a review of a decision of the Commissioner under
15
section 99 to give a blocking notice.
16
Remedial notice
17
(14) An application may be made to the Administrative Appeals
18
Tribunal for a review of a decision of the Commissioner under
19
section 119 or 120 to give a remedial notice.
20
Link deletion notice
21
(15) An application may be made to the Administrative Appeals
22
Tribunal for a review of a decision of the Commissioner under
23
section 124 to give a link deletion notice.
24
App removal notice
25
(16) An application may be made to the Administrative Appeals
26
Tribunal for a review of a decision of the Commissioner under
27
section 128 to give an app removal notice.
28
Part 16
Miscellaneous
Section 220
168
Online Safety Bill 2021
No. , 2021
Decisions under section 140
1
(17) An application may be made to the Administrative Appeals
2
Tribunal for a review of a decision of the Commissioner under
3
section 140 to refuse to register an industry code.
4
(18) An application under subsection (17) may only be made by the
5
body or association that developed the code.
6
Decisions under section 143
7
(19) An application may be made to the Administrative Appeals
8
Tribunal for a review of a decision of the Commissioner under
9
section 143 to:
10
(a) give a direction to a person; or
11
(b) vary a direction that is applicable to a person; or
12
(c) refuse to revoke a direction that is applicable to a person.
13
(20) An application under subsection (19) may only be made by the
14
person concerned.
15
Decisions under subsection 151(5) or section 154
16
(21) An application may be made to the Administrative Appeals
17
Tribunal for a review of any of the following decisions made by
18
the Commissioner:
19
(a) a decision of a kind referred to in subsection 151(5) (which
20
deals with administrative decisions under service provider
21
determinations), where the decision relates to a person;
22
(b) a decision under section 154 to:
23
(i) give a direction to a person; or
24
(ii) vary a direction that is applicable to a person; or
25
(iii) refuse to revoke a direction that is applicable to a
26
person.
27
(22) An application under subsection (21) may only be made by the
28
person concerned.
29
Miscellaneous
Part 16
Section 221
No. , 2021
Online Safety Bill 2021
169
221 Protection from civil proceedings
1
(1) Civil proceedings do not lie against a person in respect of loss,
2
damage or injury of any kind suffered by another person because
3
of any of the following acts done in good faith:
4
(a) the making of a complaint under section 30;
5
(b) the making of a statement to, or the giving of a document or
6
information to, the Commissioner in connection with an
7
investigation under section 31;
8
(c) the making of a complaint under section 32;
9
(d) the giving of an objection notice under section 33;
10
(e) the making of a statement to, or the giving of a document or
11
information to, the Commissioner in connection with an
12
investigation under section 34;
13
(f) the making of a statement to, or the giving of a document or
14
information to, the Commissioner in connection with a
15
consideration under section 35;
16
(g) the making of a complaint under section 36;
17
(h) the making of a statement to, or the giving of a document or
18
information to, the Commissioner in connection with an
19
investigation under section 37;
20
(i) the making of a complaint under section 38, 39 or 40;
21
(j) the making of a statement to, or the giving of a document or
22
information to, the Commissioner in connection with an
23
investigation under section 42.
24
(2) Civil proceedings do not lie against a person in respect of anything
25
done by the person in compliance with:
26
(a) an end-user notice; or
27
(b) a removal notice; or
28
(c) a remedial notice; or
29
(d) a link deletion notice; or
30
(e) an app removal notice; or
31
(f) a blocking request; or
32
(g) a blocking notice; or
33
(h) a notice under subsection 194(2).
34
Part 16
Miscellaneous
Section 222
170
Online Safety Bill 2021
No. , 2021
222 Liability for damages
1
None of the following:
2
(a) the Commissioner;
3
(b) a delegate of the Commissioner;
4
is liable to an action or other proceeding for damages for, or in
5
relation to, an act or matter in good faith done or omitted to be
6
done:
7
(c) in the performance or purported performance of any function;
8
or
9
(d) in the exercise or purported exercise of any power;
10
conferred on the Commissioner by or under this Act.
11
223 Protection from criminal proceedings--Commissioner,
12
Classification Board etc.
13
(1) For the purposes of this section, each of the following is a
14
protected person
:
15
(a) the Commissioner;
16
(b) a member of the staff of the ACMA;
17
(c) an officer or employee whose services are made available to
18
the ACMA under paragraph 55(1)(a) of the
Australian
19
Communications and Media Authority Act 2005
;
20
(d) a person engaged under subsection 185(1);
21
(e) a consultant engaged under section 187;
22
(f) a member or temporary member of the Classification Board;
23
(g) a member of staff assisting the Classification Board as
24
mentioned in section 88A of the
Classification (Publications,
25
Films and Computer Games) Act 1995
;
26
(h) a consultant engaged to assist in the performance of the
27
functions of the Classification Board.
28
(2) Criminal proceedings do not lie against a protected person for or in
29
relation to:
30
(a) the collection of material; or
31
(b) the possession of material; or
32
(c) the distribution of material; or
33
Miscellaneous
Part 16
Section 224
No. , 2021
Online Safety Bill 2021
171
(d) the delivery of material; or
1
(e) the copying of material; or
2
(f) the doing of any other thing in relation to material;
3
in connection with the exercise of a power, or the performance of a
4
function, conferred on the Commissioner or the Classification
5
Board by or under this Act.
6
(3) For the purposes of this section,
possession
includes have in
7
custody or control.
8
224 Referral of matters to law enforcement agencies
9
(1) If:
10
(a) in the performance of a function, or the exercise of a power,
11
conferred on the Commissioner, the Commissioner becomes
12
aware of particular material provided on a social media
13
service, relevant electronic service or designated internet
14
service; and
15
(b) the Commissioner is satisfied that the material is of a
16
sufficiently serious nature to warrant referral to a law
17
enforcement agency;
18
the Commissioner must notify the material to:
19
(c) a member of an Australian police force; or
20
(d) if there is an arrangement between:
21
(i) the Commissioner; and
22
(ii) the chief (however described) of an Australian police
23
force under which the Commissioner is authorised to
24
notify the material to another person or body;
25
that other person or body.
26
Referral to law enforcement agency
27
(2) The manner in which material is to be notified under
28
paragraph (1)(c) to a member of an Australian police force includes
29
(but is not limited to) a manner ascertained in accordance with an
30
arrangement between:
31
(a) the Commissioner; and
32
(b) the chief (however described) of the police force concerned.
33
Part 16
Miscellaneous
Section 225
172
Online Safety Bill 2021
No. , 2021
(3) If a member of an Australian police force is notified of particular
1
material under this section, the member may notify the material to
2
a member of another law enforcement agency.
3
(4) This section does not, by implication, limit the powers of the
4
Commissioner to refer other matters to a member of an Australian
5
police force.
6
225 Deferral of action in order to avoid prejudicing a criminal
7
investigation
8
If:
9
(a) in the performance of a function, or the exercise of a power,
10
conferred on the Commissioner, the Commissioner becomes
11
aware of particular material provided on a social media
12
service, relevant electronic service or designated internet
13
service; and
14
(b) apart from this section, the Commissioner would be required
15
to take action under this Act in relation to the material; and
16
(c) a member of an Australian police force satisfies the
17
Commissioner that the taking of that action should be
18
deferred until the end of a particular period in order to avoid
19
prejudicing a criminal investigation;
20
the Commissioner may defer taking that action until the end of that
21
period.
22
226 Copies of material
23
(1) The Commissioner may make one or more copies of material for
24
the purposes of:
25
(a) an investigation under section 31, 34, 37 or 42; or
26
(b) a consideration under section 35; or
27
(c) a request under section 160.
28
(2) The Commissioner does not infringe copyright if the
29
Commissioner does anything authorised by subsection (1).
30
Miscellaneous
Part 16
Section 227
No. , 2021
Online Safety Bill 2021
173
227 Compensation for acquisition of property
1
(1) If the operation of:
2
(a) this Act; or
3
(b) a legislative instrument made under this Act;
4
would result in an acquisition of property (within the meaning of
5
paragraph 51(xxxi) of the Constitution) from a person otherwise
6
than on just terms (within the meaning of that paragraph), the
7
Commonwealth is liable to pay a reasonable amount of
8
compensation to the person.
9
(2) If the Commonwealth and the person do not agree on the amount
10
of the compensation, the person may institute proceedings in:
11
(a) the Federal Court; or
12
(b) the Supreme Court of a State or Territory;
13
for the recovery from the Commonwealth of such reasonable
14
amount of compensation as the court determines.
15
228 Service of notices by electronic means
16
Paragraphs 9(1)(d) and (2)(d) of the
Electronic Transactions Act
17
1999
do not apply to a notice under:
18
(a) this Act; or
19
(b) the
Regulatory Powers (Standard Provisions) Act 2014
, so
20
far as that Act relates to this Act.
21
Note:
Paragraphs 9(1)(d) and (2)(d) of the
Electronic Transactions Act 1999
22
deal with the consent of the recipient of information to the information
23
being given by way of electronic communication.
24
229 Service of notices on contact person etc.
25
Scope
26
(1) This section applies to:
27
(a) a summons or process in any proceedings under, or
28
connected with, this Act; or
29
(b) a summons or process in any proceedings under, or
30
connected with, the
Regulatory Powers (Standard
31
Provisions) Act 2014
, so far as that Act relates to this Act; or
32
Part 16
Miscellaneous
Section 229
174
Online Safety Bill 2021
No. , 2021
(c) a notice under this Act; or
1
(d) a notice under the
Regulatory Powers (Standard Provisions)
2
Act 2014
, so far as that Act relates to this Act.
3
Service of summons, process or notice on contact person
4
(2) If:
5
(a) the summons, process or notice, as the case may be, is
6
required to be served on, or given to:
7
(i) the provider of a social media service; or
8
(ii) the provider of a relevant electronic service; or
9
(iii) the provider of a designated internet service; or
10
(iv) a hosting service provider; or
11
(v) the provider of an internet search engine service; or
12
(vi) the provider of an app distribution service; or
13
(vii) an internet service provider; and
14
(b) there is an individual who is:
15
(i) an employee or agent of the provider; and
16
(ii) designated by the provider as the provider's contact
17
person for the purposes of this Act; and
18
(c) the contact details of the contact person have been notified to
19
the Commissioner;
20
the summons, process or notice, as the case may be, is taken to
21
have been served on, or given to, the provider if it is served on, or
22
given to, the contact person.
23
Service of summons, process or notice on agent
24
(3) If:
25
(a) the summons, process or notice, as the case may be, is
26
required to be served on, or given to, a body corporate
27
incorporated outside Australia; and
28
(b) the body corporate does not have a registered office or a
29
principal office in Australia; and
30
(c) the body corporate has an agent in Australia;
31
Miscellaneous
Part 16
Section 230
No. , 2021
Online Safety Bill 2021
175
the summons, process or notice, as the case may be, is taken to
1
have been served on, or given to, the body corporate if it is served
2
on, or given to, the agent.
3
Other matters
4
(4) Subsections (2) and (3) have effect in addition to section 28A of
5
the
Acts Interpretation Act 1901
.
6
Note:
Section 28A of the
Acts Interpretation Act 1901
deals with the service
7
of documents.
8
230 Instruments under this Act may provide for matters by
9
reference to other instruments
10
(1) An instrument under this Act may make provision in relation to a
11
matter by applying, adopting or incorporating (with or without
12
modifications) provisions of any Act:
13
(a) as in force at a particular time; or
14
(b) as in force from time to time.
15
(2) An instrument under this Act may make provision in relation to a
16
matter by applying, adopting or incorporating (with or without
17
modifications) matter contained in any other instrument or writing:
18
(a) as in force or existing at a particular time; or
19
(b) as in force or existing from time to time;
20
even if the other instrument or writing does not yet exist when the
21
instrument under this Act is made.
22
(3) A reference in subsection (2) to any other instrument or writing
23
includes a reference to an instrument or writing:
24
(a) made by any person or body in Australia or elsewhere
25
(including, for example, the Commonwealth, a State or
26
Territory, an officer or authority of the Commonwealth or of
27
a State or Territory, or an overseas entity); and
28
(b) whether of a legislative, administrative or other official
29
nature or of any other nature; and
30
(c) whether or not having any legal force or effect;
31
for example:
32
(d) regulations or rules under an Act; or
33
Part 16
Miscellaneous
Section 231
176
Online Safety Bill 2021
No. , 2021
(e) a State Act, a law of a Territory, or regulations or any other
1
instrument made under such an Act or law; or
2
(f) an international technical standard or performance indicator;
3
or
4
(g) a written agreement or arrangement or an instrument or
5
writing made unilaterally.
6
(4) Nothing in this section limits the generality of anything else in it.
7
(5) Subsections (1) and (2) have effect despite anything in:
8
(a) the
Acts Interpretation Act 1901
; or
9
(b) the
Legislation Act 2003
.
10
(6) In this section:
11
instrument under this Act
means:
12
(a) the legislative rules; or
13
(b) any other instrument made under this Act; or
14
(c) an industry code (within the meaning of Division 7 of Part 9).
15
231 This Act does not limit Schedule 8 to the
Broadcasting Services
16
Act 1992
17
This Act does not limit the operation of Schedule 8 to the
18
Broadcasting Services Act 1992
.
19
232 This Act does not limit the
Telecommunications Act 1997
20
This Act does not limit the operation of the
Telecommunications
21
Act 1997
.
22
233 Implied freedom of political communication
23
(1) This Act does not apply to the extent (if any) that it would infringe
24
any constitutional doctrine of implied freedom of political
25
communication.
26
(2) Subsection (1) does not limit the application of section 15A of the
27
Acts Interpretation Act 1901
to this Act.
28
Miscellaneous
Part 16
Section 234
No. , 2021
Online Safety Bill 2021
177
234 Concurrent operation of State and Territory laws
1
It is the intention of the Parliament that this Act is not to apply to
2
the exclusion of a law of a State or Territory to the extent to which
3
that law is capable of operating concurrently with this Act.
4
235 Liability of Australian hosting service providers and internet
5
service providers under State and Territory laws etc.
6
(1) A law of a State or Territory, or a rule of common law or equity,
7
has no effect to the extent to which it:
8
(a) subjects, or would have the effect (whether direct or indirect)
9
of subjecting, an Australian hosting service provider to
10
liability (whether criminal or civil) in respect of hosting
11
particular online content in a case where the provider was not
12
aware of the nature of the online content; or
13
(b) requires, or would have the effect (whether direct or indirect)
14
of requiring, an Australian hosting service provider to
15
monitor, make inquiries about, or keep records of, online
16
content hosted by the provider; or
17
(c) subjects, or would have the effect (whether direct or indirect)
18
of subjecting, an internet service provider to liability
19
(whether criminal or civil) in respect of carrying particular
20
online content in a case where the service provider was not
21
aware of the nature of the online content; or
22
(d) requires, or would have the effect (whether direct or indirect)
23
of requiring, an internet service provider to monitor, make
24
inquiries about, or keep records of, online content carried by
25
the provider.
26
(2) The Minister may, by legislative instrument, exempt a specified
27
law of a State or Territory, or a specified rule of common law or
28
equity, from the operation of subsection (1).
29
Note:
For specification by class, see subsection 13(3) of the
Legislation Act
30
2003
.
31
(3) An exemption under subsection (2) may be unconditional or
32
subject to such conditions (if any) as are specified in the
33
exemption.
34
Part 16
Miscellaneous
Section 236
178
Online Safety Bill 2021
No. , 2021
Declaration by Minister
1
(4) The Minister may, by legislative instrument, declare that a
2
specified law of a State or Territory, or a specified rule of common
3
law or equity, has no effect to the extent to which the law or rule
4
has a specified effect in relation to an Australian hosting service
5
provider.
6
Note:
For specification by class, see subsection 13(3) of the
Legislation Act
7
2003
.
8
(5) The Minister may, by legislative instrument, declare that a
9
specified law of a State or Territory, or a specified rule of common
10
law or equity, has no effect to the extent to which the law or rule
11
has a specified effect in relation to an internet service provider.
12
Note:
For specification by class, see subsection 13(3) of the
Legislation Act
13
2003
.
14
(6) A declaration under subsection (4) or (5) has effect only to the
15
extent that:
16
(a) it is authorised by paragraph 51(v) of the Constitution (either
17
alone or when read together with paragraph 51(xxxix) of the
18
Constitution); or
19
(b) both:
20
(i) it is authorised by section 122 of the Constitution; and
21
(ii) it would have been authorised by paragraph 51(v) of the
22
Constitution (either alone or when read together with
23
paragraph 51(xxxix) of the Constitution) if section 51 of
24
the Constitution extended to the Territories.
25
236 This Act not to affect performance of State or Territory
26
functions
27
A power conferred by this Act must not be exercised in such a way
28
as to prevent the exercise of the powers, or the performance of the
29
functions, of government of a State, the Northern Territory or the
30
Australian Capital Territory.
31
Miscellaneous
Part 16
Section 237
No. , 2021
Online Safety Bill 2021
179
237 Revocation or variation of instruments
1
A provision of this Act that expressly authorises the revocation or
2
variation of an instrument does not, by implication, limit the
3
application of subsection 33(3) of the
Acts Interpretation Act 1901
4
in relation to other instruments under this Act.
5
238 Provider of social media service, relevant electronic service,
6
designated internet service or app distribution service
7
(1) For the purposes of this Act, a person does not provide a social
8
media service, relevant electronic service or designated internet
9
service merely because the person supplies a carriage service that
10
enables material to be accessed or delivered.
11
(2) For the purposes of this Act, a person does not provide an app
12
distribution service merely because the person supplies a carriage
13
service that enables apps to be downloaded.
14
(3) For the purposes of this Act, a person does not provide a social
15
media service, relevant electronic service, designated internet
16
service or app distribution service merely because the person
17
provides a billing service, or a fee collection service, in relation to
18
a social media service, relevant electronic service, designated
19
internet service or app distribution service.
20
239 Extended meaning of use
21
Unless the contrary intention appears, a reference in this Act to the
22
use
of a thing is a reference to the use of the thing either:
23
(a) in isolation; or
24
(b) in conjunction with one or more other things.
25
239A Review of operation of this Act
26
(1) Within 3 years after the commencement of this section, the
27
Minister must cause to be conducted an independent review of the
28
operation of this Act.
29
Part 16
Miscellaneous
Section 240
180
Online Safety Bill 2021
No. , 2021
(2) The Minister must cause to be prepared a written report of the
1
review.
2
(3) The Minister must cause copies of the report to be tabled in each
3
House of the Parliament within 15 sitting days of that House after
4
the day on which the report is given to the Minister.
5
240 Legislative rules
6
(1) The Minister may, by legislative instrument, make rules
7
(
legislative rules
) prescribing matters:
8
(a) required or permitted by this Act to be prescribed by the
9
legislative
rules; or
10
(b) necessary or convenient to be prescribed for carrying out or
11
giving effect to this Act.
12
(2) To avoid doubt, the legislative
rules may not do the following:
13
(a) create an offence or civil penalty;
14
(b) provide powers of:
15
(i) arrest or detention; or
16
(ii) entry, search or seizure;
17
(c) impose a tax;
18
(d) set an amount to be appropriated from the Consolidated
19
Revenue Fund under an appropriation in this Act;
20
(e) directly amend the text of this Act.
21