Commonwealth Consolidated Acts

ONLINE SAFETY ACT 2021 - SECT 235

  (1)   A law of a State or Territory, or a rule of common law or equity, has no effect to the extent to which it:

  (a)   subjects, or would have the effect (whether direct or indirect) of subjecting, an Australian hosting service provider to liability (whether criminal or civil) in respect of hosting particular online content in a case where the provider was not aware of the nature of the online content ; or

  (b)   requires, or would have the effect (whether direct or indirect) of requiring, an Australian hosting service provider to monitor, make inquiries about, or keep records of, online content hosted by the provider ; or

  (c)   subjects, or would have the effect (whether direct or indirect) of subjecting, an internet service provider to liability (whether criminal or civil) in respect of carrying particular online content in a case where the service provider was not aware of the nature of the online content ; or

  (d)   requires, or would have the effect (whether direct or indirect) of requiring, an internet service provider to monitor, make inquiries about, or keep records of, online content carried by the provider.

  (2)   The Minister may, by legislative instrument, exempt a specified law of a State or Territory, or a specified rule of common law or equity, from the operation of subsection   ( 1).

Note:   For specification by class, see subsection   1 3(3) of the Legislation Act 2003 .

  (3)   An exemption under subsection   ( 2) may be unconditional or subject to such conditions (if any) as are specified in the exemption.

Declaration by Minister

  (4)   The Minister may, by legislative instrument, declare that a specified law of a State or Territory, or a specified rule of common law or equity, has no effect to the extent to which the law or rule has a specified effect in relation to an Australian hosting service provider .

Note:   For specification by class, see subsection   1 3(3) of the Legislation Act 2003 .

  (5)   The Minister may, by legislative instrument, declare that a specified law of a State or Territory, or a specified rule of common law or equity, has no effect to the extent to which the law or rule has a specified effect in relation to an internet service provider.

Note:   For specification by class, see subsection   1 3(3) of the Legislation Act 2003 .

  (6)   A declaration under subsection   ( 4) or (5) has effect only to the extent that:

  (a)   it is authorised by paragraph   51(v) of the Constitution (either alone or when read together with paragraph   51(xxxix) of the Constitution); or

  (b)   both:

  (i)   it is authorised by section   1 22 of the Constitution; and

  (ii)   it would have been authorised by paragraph   51(v) of the Constitution (either alone or when read together with paragraph   51(xxxix) of the Constitution) if section   5 1 of the Constitution extended to the Territories.