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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
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Purpose
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This bill seeks to create a modern, fit for purpose regulatory framework
that builds on the strengths of the existing legislative
scheme for online
safety
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Portfolio
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Communications, Urban Infrastructure, Cities and the Arts
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Introduced
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House of Representatives on 24 February 2021
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1.36 Clauses 31, 34, 37, 42 and 43 provide the eSafety Commissioner with discretion to investigate complaints in relation to cyber-bullying material, the posting of intimate images, cyber-abuse material and in relation to certain online material and breaches of a service provider rule or industry code.
1.37 The committee notes that the proposed power in these clauses provides the Commissioner with a broad power to determine which complaints will be investigated, when an investigation will be terminated, and the manner in which investigations will be undertaken.
1.38 The committee expects that the inclusion of broad discretionary powers should be justified in the explanatory memorandum. In this instance, the explanatory memorandum states that the discretionary nature of the power:
provides flexibility to the Commissioner to decide which complaints can be investigated, and will allow the Commissioner to appropriately direct resources to where they are needed most.[14]
...an investigation under this clause is to be conducted as the Commissioner sees fit and that the Commissioner may, for the purposes of an investigation, obtain information from such persons, and make such inquiries, as the Commissioner sees fit. It is expected that the Commissioner will develop appropriate procedures for the acceptance, investigation and closing of complaints.[15]
1.39 While noting this explanation, neither the bill nor the explanatory memorandum provides any further information about the expected content of procedures for the acceptance, investigation and closing of complaints, and there does not appear to be a positive requirement in the bill for the Commissioner to develop such procedures or ensure that these are accessible for people considering making a complaint.
1.40 Clause 220 sets out an exhaustive list of decisions of the Commissioner that are subject to review by the Administrative Appeals Tribunal. However, decisions to investigate or not investigate a complaint made under clauses 31, 34, 37, 42 and 43 are not included as reviewable decisions under clause 220.
1.41 The explanatory memorandum states:
A decision not to investigate a complaint is not reviewable under the Bill (clause 220 deals with review of decisions under the Bill). Instead, review of such a decision would be governed by the Administrative Decisions (Judicial Review) Act 1977 and section 39B of the Judiciary Act 1903.[16]
1.42 The committee considers that, generally, administrative decisions that will, or are likely to, affect the interests of a person should be subject to independent merits review unless a sound justification is provided. The committee notes that victims of cyber-bullying, and image-based or cyber-abuse may experience significant psychological harms, such that a decision to refuse to investigate a complaint could affect the rights and interests of individuals. Noting also that the explanatory memorandum emphasises the discretion of the Commissioner in making these decisions, it appears that merits review may be appropriate for decisions made under clauses 31, 34, 37, 42 and 43.
1.43 The committee therefore requests the minister's more detailed advice as to:
• why it is considered necessary and appropriate to provide the Commissioner with a broad discretion to determine whether to investigate complaints and the manner in which investigations will be undertaken;
• whether the bill can be amended to include additional guidance on the exercise of this discretion on the face of the primary legislation or, at a minimum, in the explanatory memorandum; and
• why merits review will not be available in relation to decisions made by the Commissioner under clauses 31, 34, 37, 42 and 43.
1.44 The committee's consideration of the appropriateness of excluding merits review will be assisted if the minister's response identifies established grounds for excluding merits review, as set out in the Administrative Review Council's guidance document, What Decisions Should be Subject to Merit Review?.
1.45 Part 9 of the bill seeks to establish an online content scheme to provide for the regulation of 'class 1 and class 2 material' online. Clauses 106 and 107 propose to set out when online content will be 'class 1' or 'class 2' material. These provisions rely heavily on whether the material has already been classified by the Classification Board under the Classification (Publications, Films and Computer Games) Act 1995 (Classification Act) as falling into certain categories such as 'refused classification', X 18+, R 18+ or 'Category 1 restricted' or 'Category 2 restricted' material.
1.46 Clauses 106 and 107 further provide that material will be 'class 1' or 'class 2' material if the relevant material 'would be likely to be' classified in one of the listed classification categories.
1.47 If the Commissioner is satisfied that material is 'class 1' or 'class 2' material, a range of measures are available to the Commissioner to restrict access to the material, including issuing removal notices,[18] remedial notices,[19] link deletion notices,[20] and app removal notices.[21]
1.48 The committee notes that the proposed power in these clauses appears to provide the Commissioner with a broad discretion to determine the scope of content that will be regulated by the online content scheme.
1.49 The committee expects that the inclusion of broad discretionary powers should be justified in the explanatory memorandum. In this instance, the explanatory memorandum contains no justification for the inclusion of this broad discretionary power.
1.50 The committee further notes that clause 222 seeks to provide that the Commissioner and any of their delegates are not liable to an action or other proceeding for damages for, or in relation to, an act or matter done or omitted to be done in good faith in the performance or purported performance of any function or in the exercise or purported exercise of any power that is conferred on the Commissioner by or under the bill.
1.51 This would remove any common law right to bring an action for damages, unless it can be demonstrated that lack of good faith is shown, and the committee notes that the courts have taken the position that bad faith can only be shown in very limited circumstances. It may therefore be very difficult for a person who is adversely affected by an action of the Commissioner to seek compensation for damage suffered as a result of a mistaken removal of or restriction of access to their online content.
1.52 The explanatory memorandum does not explain why it is appropriate that the Commissioner or their delegates should not be liable for damages for actions taken in this context.
1.53 The committee therefore requests the minister's advice as to:
• why it is considered necessary and appropriate to provide the Commissioner with a broad discretionary power to determine that material which has not previously been classified will be 'class 1' or 'class 2' material; and
• whether the bill can be amended to include additional guidance on the exercise of the power on the face of the primary legislation; and
• why it is considered necessary and appropriate to provide that the Commissioner and their delegates are not liable for damages for acts done in good faith in the performance or exercise of powers or functions conferred by the bill.
1.54 Subclause 235(1) provides that the law of a State or Territory, or a rule of common law or equity has no effect to the extent to which it:
• subjects or would have the direct or indirect effect of subjecting an Australian hosting service provider or an internet service provider to liability (whether civil or criminal) in respect of hosting or carrying particular online content, where the provider was not aware of the nature of the content; or
• requires or would have the direct or indirect effect of requiring an Australian hosting service provider or internet service provider to monitor, make inquiries about, or keep records about online content hosted or carried by the provider.
1.55 The committee notes that the explanatory memorandum to the bill simply describes the provision. The intended effect of the provision is therefore unclear, and it is not clear whether the provision may affect any existing rights and obligations of hosting service providers, internet service providers, or other persons.
1.56 The committee therefore requests the minister's detailed advice as to:
• the intended purpose and operation of subclause 235(1);
• examples of the types of liability that may be excluded; and
• what rights and obligations may be affected by the exclusion of liability in subclause 235(1).
1.57 Subclause 99(1) creates a power for the Commissioner to issue a written notice requiring an internet service provider to disable access to material that promotes, incites or instructs in abhorrent violent conduct or depicts abhorrent violent conduct. Subclause 99(3) provides that the Commissioner is not required to observe the requirements of procedural fairness in relation to issuing a blocking notice under subclause 99(1). Failure to comply with a blocking notice is subject to a civil penalty of 500 penalty units.[24]
1.58 The committee notes that the right to procedural fairness has two basic rules. It requires that decision-makers are not biased and do not appear to be biased, and requires that a person who may be adversely affected by a decision is given an adequate opportunity to put their case before the decision is made. The committee considers that the right to procedural fairness is a fundamental common law right and it expects that any limitation on this right to be comprehensively justified in the explanatory memorandum. In this instance, the explanatory memorandum states:
This is intended to exclude any procedural fairness requirements to both an ISP [internet service provider] and to any other person to whom procedural fairness might be owed, for example the owner of a website that is being blocked. The reason for excluding procedural fairness in relation to the issuing of the notice is to enable the Commissioner to issue a notice as quickly as possible to protect the Australian community from seriously harmful material. Exposure to this material can traumatise and harm those who view it, compound the harm experienced by the victims of such actions, glorify perpetrators, incite further violence and contribute to the radicalisation of end-users.[25]
1.59 While noting the above explanation, the committee also notes that the courts have consistently interpreted procedural fairness obligations flexibly based on specific circumstances and the statutory context. If it could, in the circumstances of a particular case, be demonstrated that there was a need for particular urgency to protect from harmful material, then the rules of natural justice may require no more than a consideration of the extent to which it is possible to give notice to the affected person and how much (if any) detail of the reasons for the proposed decision should be disclosed. The explanatory materials do not address why this level of flexibility would not be adequate in these circumstances.
1.60 The committee also notes that the explanatory memorandum only appears to address the natural justice aspect of procedural fairness and does not provide any explanation why the other limb of the right to procedural fairness, the bias rule, has also been excluded.
1.61 In light of the above comments, the committee requests the minister's more detailed justification regarding why it is considered necessary and appropriate to remove the requirement to observe any requirements of procedural fairness in relation to issuing a blocking notice under subclause 99(1).
1.62 Part 15 of the bill enables the Commissioner to disclose information for certain purposes. Clauses 211 to 214 allow the Commissioner to disclose information to a Royal Commission, certain authorities, school principals, or parents, and to impose conditions to be complied with in relation to the disclosed information by legislative instrument.
1.63 The committee notes that, under the bill, the Commissioner is able to collect personal identifying information about individuals, including through clause 194 which would allow the Commissioner to require a person who provides a social media service, relevant electronic service or designated internet service to give the Commissioner information about the identity of an end-user of a service.
1.64 The committee's view is that significant matters, such as conditions for the disclosure of information that may include identifying personal information, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. In this instance, the explanatory memorandum contains no justification regarding why it is necessary to allow such significant matters to be set out in delegated legislation.
1.65 The committee notes that a legislative instrument, made by the executive, is not subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill.
1.66 In light of the above, the committee requests the minister's detailed advice as to:
• why it is considered necessary and appropriate to leave conditions to be complied with in relation to the disclosure of information to delegated legislation; and
• whether the bill can be amended to include at least high-level guidance regarding conditions which will be imposed on the face of the primary legislation.
1.67 The bill seeks to insert a range of powers for the minister or Commissioner to prescribe matters in delegated legislation:
• Clauses 6 and 7 – in relation to conditions to be met for material to be considered cyber-bullying or cyber abuse material (legislative rules made by the minister may set out other conditions);
• Clause 13 – in relation to the definition of 'social media service' (meeting conditions in rules or an electronic service specified in the rules; or being an exempt service by virtue of being specified in the legislative rules);
• Clause 13A – in relation to the definition of 'relevant electronic service' (includes an electronic service specified in the legislative rules);
• Clause 14 – in relation to the definition of designated internet service and exempt services (these are to be specified in a legislative instrument made by the minister);
• Clause 27 – in relation to the commissioner's functions, which may include such other functions as are specified in the legislative rules;
• Clause 45 – in relation to basic online safety expectations (these may be determined by legislative instrument made by the minister, including determining expectations in relation to each relevant electronic service or designated internet service);
• Clauses 52 and 59 – periodic and non-periodic reporting obligations for service providers may be determined by legislative instrument made by the Commissioner;
• Clause 86 – a provision of intimate image will be an exempt provision of an intimate image if it satisfies one or more conditions determined by legislative instrument made by the minister;
• Clause 108 – the restricted access system may be determined by legislative instrument made by the Commissioner;
• Subclause 145(1) – industry standards may be determined by the Commissioner by legislative instrument to apply to participants in a particular section of the online industry;
• Clause 151 – service provider determinations may be determined by the Commissioner by legislative instrument
• Clause 152 – exemptions from service provider determinations may be determined by the minister by legislative instrument;
• Subclause 235(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 235(1).
1.68 The committee's view is that matters that may be significant to the operation of a legislative scheme should be included in primary legislation unless sound justification for the use of delegated legislation is provided. The committee notes that providing for a broad range of matters to be provided for in delegated legislation provides the minister and Commissioner with a broad power to determine the scope and operation of significant aspects of the bill. For example, the committee notes that leaving the determination of the 'restricted access system' to delegated legislation provides the Commissioner with a broad discretion to determine the manner in which online content may be subject to access controls.[28] It is unclear to the committee why at least high-level guidance in relation to these matters cannot be provided on the face of the bill.
1.69 A number of the above clauses will also establish obligations on service providers, which will attract enforcement measures including civil penalties for failure to comply.[29] The committee considers that significant matters such as provisions that establish obligations subject to civil penalties should also be included in primary legislation unless sound justification for the use of delegated legislation is provided.
1.70 The explanatory memorandum in relation to each of the above clauses generally only describes the provisions. The committee therefore considers that these matters have not been sufficiently addressed in the explanatory memorandum and that the prescription of so many delegated legislation making powers has not been adequately justified.
1.71 In light of the above, the committee requests the minister's detailed advice as to:
• why it is considered necessary and appropriate to leave each of the above matters to delegated legislation; and
• whether the bill can be amended to include at least high-level guidance regarding these matters on the face of the primary legislation.
1.72 Clause 145 provides for the Commissioner to determine an industry standard that applies to participants in a particular section of the online industry. Subclause 145(3) provides for the minister to give the Commissioner a written direction as to the exercise of the Commissioner’s powers under this clause.
1.73 Clause 184 requires the requires the ACMA to assist the Commissioner to perform their functions and exercise their powers, including by providing advice and making resources and facilities available. Subclause 184(5) enables the Minister, by legislative instrument, to give directions to the ACMA in relation to providing this assistance.
1.74 Subclause 188(1) enables the Minister, by legislative instrument, to give directions to the Commissioner about the performance of the Commissioner’s functions or exercise of the Commissioner’s powers.
1.75 The explanatory memorandum states that a direction made under subclause 145(3) is a legislative instrument that is not subject to disallowance, by virtue of section 9 of the Legislation (Exemptions and Other Matters) Regulation 2015.[31] Notes to clauses 184 and 188 similarly state that the instruments are not subject to parliamentary disallowance, with reference to regulations made under paragraph 44(2)(b) of the Legislation Act 2003.
1.76 The committee's view is that significant matters, such as directions relating to the performance of the Commissioner's powers or the manner in which assistance is provided to the Commissioner should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. In this instance the explanatory memorandum contains no justification regarding why it is necessary to allow such significant matters to be set out in delegated legislation.
1.77 The committee further expects that any exemption of delegated legislation from the usual disallowance process should be fully justified in the explanatory memorandum. The fact that a certain matter has previously been within executive control or continues current arrangements does not, of itself, provide an adequate justification.
1.78 The committee also notes that clause 190 would continue in existence the online safety special account, and that clause 191 provides for the crediting of funds to the special account, including by enabling the minister to determine that a specified amount be credited to the special account. Subclause 191(2) provides that such a determination is a legislative instrument that is not subject to disallowance under section 42 of the Legislation Act 2003.
1.79 The explanatory memorandum states that 'exclusion from disallowance is appropriate in this instance to provide certainty of funding to the Commissioner'.[32]
1.80 While noting this explanation, the committee also notes that, under section 42 of the Legislation Act 2003, a legislative instrument is only subject to disallowance for a period of 15 sitting days of a House of Parliament after it is tabled in that House. Further, the instances of the disallowance procedure resulting in disallowance by the Parliament are very low, and there are alternative mechanisms available to makers of delegated legislation to overcome any remaining uncertainty, such as having delegated legislation come into effect after the disallowance period has passed. The committee therefore does not generally accept a desire to provide certainty, of itself, to be sufficient justification for exempting an instrument from the parliamentary disallowance process.
1.81 In light of the above, the committee requests the minister's detailed advice as to:
• why it is considered necessary and appropriate to leave the following matters to delegated legislation which is exempt from disallowance:
• directions about the exercise of powers or performance of functions of the Commissioner;
• directions about the provision by the ACMA of assistance to the Commissioner; and
• determinations of amounts to be credited to the online safety special account; and
• whether the bill can be amended to:
• provide that these directions and determinations are subject to parliamentary disallowance; and
• provide at least high-level guidance regarding what may be included in the directions on the face of the primary legislation.
1.82 Clause 27 of the bill sets out the functions of the Commissioner, which include, at paragraph 27(1)(g) to make grants of financial assistance relating to online safety for Australians. Subclause 27(2) provides that such grants may be made to a State, a Territory, or a person other than a state or territory. Subclause 27(3) provides that the terms and conditions on which financial assistance is granted are to be set out in a written agreement between the Commonwealth and the grant recipient.
1.83 The committee notes that section 96 of the Constitution confers on the Parliament the power to make grants to the states and to determine the terms and conditions attaching to them.[34] Where the Parliament delegates this power to the executive, the committee considers it appropriate for the exercise of the power to be subject to at least some level of parliamentary scrutiny, particularly noting the terms of section 96 and the role of senators in representing the people of their state or territory.
1.84 In this instance, however, the bill contains no guidance as to the terms and conditions on which financial assistance may be granted. In addition, there is no requirement to table the written agreements between the Commonwealth and the states and territories in the Senate to ensure that senators are at least made aware of, and have an opportunity to debate, any agreements made under clause 27.
1.85 The committee therefore requests the minister's advice as to whether the bill can be amended to:
• include at least high-level guidance as to the terms and conditions on which financial assistance may be granted; and
• include a requirement that written agreements with the states and territories about grants of financial assistance relating to online safety for Australians made under clause 27 are:
• tabled in the Parliament within 15 sitting days after being made; and
• published on the internet within 30 days of being made.
1.86 Clause 205 creates an offence of non-compliance with a requirement by the Commissioner to answer a question, give evidence or to produce documents under Part 14 of the bill. Subclauses 205(3), (4) and (5) provide exceptions (offence-specific defences) to this offence, stating that the offence does not apply if:
• the person has a reasonable excuse;
• the answer to the question or the production of the document would tend to incriminate the person; or
• the person is a journalist and the answer to the question or the production of the document would tend to disclose the identity of a person who supplied information in confidence to the journalist.
1.87 The offence carries a maximum penalty of imprisonment for 12 months.
1.88 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence.[36] This is an important aspect of the right to be presumed innocent until proven guilty. Provisions that reverse the burden of proof and require a defendant to disprove, or raise evidence to disprove, one or more elements of an offence, interferes with this common law right.
1.89 While in this instance the defendant bears an evidential burden (requiring the defendant to raise evidence about the matter), rather than a legal burden (requiring the defendant to positively prove the matter), the committee expects any such reversal of the evidential burden of proof to be justified. The reversals of the evidential burden of proof in clause 205 have not been addressed in the explanatory materials.
1.90 Clause 75 of the bill would create a prohibition on the non-consensual sharing of intimate images. Subclause 75(1) provides that a person who is an end-user of a social media service, a relevant electronic service, or a designated internet service, must not post or make a threat to post an intimate image of another person without their consent. A civil penalty of 500 penalty units may be imposed for contravening the provision. Subclauses 75(2), (3) and (4) each provide an exception to the prohibition, providing that subclause 75(1) does not apply if:
• the intimate image was posted with the consent of the person it depicts;
• the intimate image is covered by subclause 15(4) because it depicts, or appears to depict, the other person without particular attire of religious or cultural significance; and the person posting the image did not know that the person depicted consistently wears that attire in public; or
• the post of the intimate image is, or would be, an exempt provision of the image. An exempt provision of an intimate image is broadly defined in clause 86 and includes if the provision of the image is necessary for the enforcement of a law, for the purposes of court or tribunal proceedings or if an ordinary reasonable person would consider the provision of the intimate image acceptable on a number of grounds.
1.91 Notes to subclauses 75(2), (3) and (4) state:
In proceedings for a civil penalty order against a person for a contravention of subsection (1), the person bears an evidential burden in relation to the matter in this subsection (see section 96 of the Regulatory Powers (Standard Provisions) Act 2014).
1.92 The committee notes that the explanatory materials do not provide any justification for the reversal of the evidential burden of proof, merely stating the effect of the relevant provisions.
1.93 The committee also notes that the reversal of the burden of proof in subclauses 75(2), (3) and (4) relates to a civil penalty, rather than to a criminal offence. However, the committee recognises that, in certain cases, there may be a blurring of distinctions between criminal and civil penalties, with civil penalties applied in circumstances that are akin to criminal offences. The committee considers that reversals of the burden of proof in such cases merit careful scrutiny, as there could be a risk that reversing the burden of proof in such cases may unduly trespass on personal rights and liberties. This is particularly the case where more significant penalties are imposed. In this case, the committee notes that subclause 75(1) seeks to impose a maximum penalty of what currently amounts to $111,000 on natural persons.[37]
1.94 As the explanatory materials do not address this issue, the committee requests the minister's advice as to the appropriateness of reversing the evidential burden of proof in offence-specific defences in clause 205 and exceptions in clause 75.
1.95 The committee's consideration of the appropriateness of a provision which reverses the burden of proof is assisted if it explicitly addresses relevant principles as set out in the Guide to Framing Commonwealth Offences.[38]
1.96 Subclause 230(2) provides that an instrument made under the Act may make provision in relation to a matter by applying, adopting or incorporating matter contained in any other instrument or writing as in force or existing from time to time. Subclause 230(3) provides a non-exhaustive list of examples of material that may be incorporated including regulations or rules made under an Act, a State Act or law of a Territory, or an international technical standard or performance indicator.
1.97 The explanatory memorandum provides no explanation as to why it would be necessary for this material to apply as in force or existing from time to time.
1.98 At a general level, the committee will have scrutiny concerns where provisions in a bill allow the incorporation of legislative provisions by reference to other documents because such an approach:
• raises the prospect of changes being made to the law in the absence of Parliamentary scrutiny, (for example, where an external document is incorporated as in force 'from time to time' this would mean that any future changes to that document would operate to change the law without any involvement from Parliament);
• can create uncertainty in the law; and
• means that those obliged to obey the law may have inadequate access to its terms (in particular, the committee will be concerned where relevant information, including standards, accounting principles or industry databases, is not publicly available or is available only if a fee is paid).
1.99 As a matter of general principle, any member of the public should be able to freely and readily access the terms of the law. Therefore, the committee's consistent scrutiny view is that where material is incorporated by reference into the law it should be freely and readily available to all those who may be interested in the law.
1.100 Noting the above comments, the committee requests the minister's advice as to whether material that may be applied, adopted or incorporated by reference under subclause 230(2) will be made freely available to all persons interested in the law and why it is necessary to apply this material as in force or existing from time to time, rather than when the instrument is first made.
1.101 Clause 181 provides that the Commissioner may, by writing, delegate any or all of the Commissioner’s functions and powers to members of the staff of the ACMA or persons whose services are made available to the ACMA under paragraph 55(1)(a) of the Australian Communications and Media Authority Act 2005. The Act specifies that the Commissioner may delegate these powers or functions to a member or person if they are an SES employee or acting SES employee, or an APS employee who holds or performs duties of an Executive Level 1 or 2 or APS 6 position or equivalent positions.
1.102 Clause 182 provides that the Commissioner may, by writing, delegate any or all of the Commissioner’s functions or powers to a contractor engaged by the Commissioner under subsection 185(1), unless those powers are specified in subclause 182(4).
1.103 The committee has consistently drawn attention to legislation that allows the delegation of administrative powers to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. Generally, the committee prefers to see a limit set either on the scope of powers that might be delegated, or on the categories of people to whom those powers might be delegated. The committee's preference is that delegates be confined to the holders of nominated offices or to members of the Senior Executive Service. Where broad delegations are provided for, the committee considers that an explanation of why these are considered necessary should be included in the explanatory memorandum.
1.104 The explanatory materials provide no information about why these powers are proposed to be delegated to persons in Executive Level 1 or 2, or APS 6 level positions. In relation to the delegation of powers and functions to contractors, the explanatory memorandum states:
The intention behind this provision is that a contractor engaged by the Commissioner under subclause 185(1) cannot be delegated any of the Commissioner’s powers or functions where there are civil penalties attached, or where, for example, it would be more appropriate for the Commissioner or APS staff, who are subject to the Public Service Act 1999, to exercise the power. The contractor could, for example, be involved in day-to-day work to inform the decisions of the Commissioner; however, final decision-making authority will rest with the Commissioner personally, or a sufficiently senior APS employee who has had the appropriate functions and powers delegated to them under clause 181. It is not intended that this provision extends to general delegations under the PGPA Act or Public Service Act 1999. For example, a contractor engaged by the Commissioner under subclause 185(1) could not sign a contract on behalf of the Commonwealth. However, the contractor could undertake work to inform a contract up to the point of signature.[41]
1.105 While noting this explanation of subclause 182(4), the committee notes that the explanatory memorandum does not include an explanation of why it is necessary or appropriate to allow the Commissioner's functions and powers to be delegated to contractors.
1.106 The committee requests the minister's advice as to:
• why it is considered necessary and appropriate to allow any or all of the Commissioner's functions and powers to be delegated to members of the staff of the ACMA or persons whose services are made available to the ACMA who hold Executive Level 1 or 2, or APS 6 level positions;
• why it is considered necessary and appropriate to allow the Commissioner's functions and powers that are not listed in subclause 182(4) to be delegated to a contractor; and
• whether the bill can be amended to provide some legislative guidance as to the scope of powers that might be delegated to members of the staff of the ACMA or persons whose services are made available to the ACMA.
[13] Clauses 31, 34, 37, 42, 43 and 220. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(ii) and (iii).
[14] Explanatory memorandum p. 86.
[15] Explanatory memorandum p. 88.
[16] See explanatory memorandum, pp. 83 and 88.
[17] Part 9. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(ii).
[18] Clauses 109, 110, 114, and 115.
[19] Clauses 119 and 120.
[20] Clause 124.
[21] Clause 128.
[22] Clause 235. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).
[23] Clause 99. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iii).
[24] See clause 103.
[25] Explanatory memorandum, p. 119.
[26] Clauses 211 to 214. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i) and (iv).
[27] Clauses throughout the bill as listed. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iv).
[28] Division 4 of Part 9 provides for the Commissioner to issue remedial notices in relation to 'class 2' material which may require a service provider to take steps to ensure that access to material is subject to a restricted access system.
[29] See, for example, clauses 53 and 60, which impose civil penalties of 500 penalty units for non‑compliance with determinations made under clauses 52 or 59.
[30] Clauses 145, 184, 188 and 191. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iv).
[31] Explanatory memorandum, p. 138.
[32] Explanatory memorandum, p. 153.
[33] Clause 27. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv) and (v).
[34] Section 96 of the Constitution provides that: '...the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit'.
[35] Clauses 75 and 205. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).
[36] Subsection 13.3(3) of the Criminal Code Act 1995 provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification bears an evidential burden in relation to that matter.
[37] See section 4AA of the Crimes Act 1914 which defines a 'penalty unit', and Notice of Indexation of the Penalty Unit Amount [F2020N00061], providing that the value of the penalty unit amount increased to $222 from 1 July 2020.
[38] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp. 50-52.
[39] Subclause 230(2). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).
[40] Clauses 181 and 182. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(ii).
[41] Explanatory memorandum, p. 150.
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