Online Safety Bill 2021 - Commentary on Ministerial Responses [2021] AUSStaCSBSD 99 (12 May 2021)

• Online Safety Bill 2021
• Significant matters in delegated legislation19

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Online Safety Bill 2021

Purpose	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
Portfolio	Communications, Urban Infrastructure, Cities and the Arts
Introduced	House of Representatives on 24 February 2021
Bill status	Before the Senate

Significant matters in delegated legislation^[19]

2.50 The committee initially scrutinised this bill in Scrutiny Digest 5 of 2021 and requested the minister's advice.^[20] The committee considered the minister's first response in Scrutiny Digest 6 of 2021 and reiterated its request for the minister's detailed advice as to why it is considered necessary and appropriate to leave matters contained in each of the following provisions to delegated legislation:

• clauses 6 and 7 – in relation to conditions to be met for material to be considered cyber-bullying or cyber abuse material;

• clause 13 – in relation to the definition of 'social media service';

• clause 13A – in relation to the definition of 'relevant electronic service';

• clause 14 – in relation to the definition of 'designated internet service' and 'exempt services';

• 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;

• clauses 52 and 59 – in relation to periodic and non-periodic reporting obligations for service providers;

• clause 86 – in relation to exempt provisions of an intimate image;

• clause 108 – in relation to the restricted access system;

• subclause 145(1) – in relation to industry standards;

• clause 151 – in relation to service provider determinations;

• clause 152 – in relation to exemptions from service provider determinations; and

• subclause 235(2) – in relation to an exemption of a specified law of a State or Territory, or a specified rule of common law or equity, from the operation of subsection 235(1).

2.51 The committee also requested the minister's detailed advice as to whether the bill can be amended to include at least high-level guidance in relation to the determination by the Commissioner of the following matters on the face of primary legislation:

• the 'restricted access system' under clause 108;

• 'industry standards' under subclause 145(1); and

• 'service provider determinations' under clause 151 and exemptions from such determinations under clause 152.[21]

Minister's response^[22]

2.52 The minister advised:

I have noted the comments of the committee in its Scrutiny Digest 6 of 2021 (the Digest) and I provide the attached addendum to the explanatory memorandum of the Bill that responds to 10 of the matters raised at pages 55 to 80.
I have given careful consideration to your request for further information in relation to delegated legislation in the Bill, and your request that the Bill be amended to provide guidance to the Commissioner in relation to a determination under the Bill. Having weighed up these issues, and balanced them up against the importance of the eSafety Commissioner being as effective as possible in protecting Australians against online harms, I have concluded that in my judgement the better course is not to amend the Bill.

Committee comment

2.53 The committee thanks the minister for this response. The committee notes the minister's advice that he has given careful consideration to the committee's requests but has concluded that the better course is not to amend the bill. The minister advised that he has come to this conclusion having weighed the scrutiny issues against the importance of the Commissioner being as effective as possible in protecting Australians against online harms.

2.54 However the committee notes that the minister's response did not address the committee's request for detailed advice justifying the extensive powers in the bill to make delegated legislation to deal with matters that are significant to the operation of the revised online safety scheme. While noting the minister's above advice, it is unclear to the committee how the effectiveness of the Commissioner would be undermined by the provision of a response to the committee and addendums to explanatory material to the bill so that it includes justification for clauses that delegate legislative power. The committee therefore restates its concern that the bill appears to be non-compliant with the committee's scrutiny principles, in that the bill appears to inappropriately delegate legislative powers.

2.55 The committee reiterates its longstanding views with respect to the importance of explanatory material to bills and the role of these documents in ensuring effective access to and understanding of proposed legislation. The committee considers that the quality of explanatory material is of fundamental importance to ensuring that the Parliament can effectively carry out its legislative function. In this instance, while the committee thanks the minister for preparing an addendum to the explanatory memorandum to the bill, the committee is of the view that the inadequacy of the original explanatory memorandum to the bill has not been resolved by the addendum included with the minister's response. This is particularly the case as the addendum to the explanatory memorandum does not address the committee's concerns with respect to the 15 identified clauses that appear to inappropriately delegate legislative power.

2.56 The committee also takes this opportunity to emphasise the importance of constructive dialogue with legislation proponents to assist the committee in its scrutiny work and thereby assist senators in their consideration of proposed legislation.

2.57 In light of the above, the committee requests that a more comprehensive addendum to the explanatory memorandum be tabled in the Parliament as soon as practicable. The committee makes this request in consideration of the importance of these explanatory materials as a point of access to understanding the law, and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretations Act 1901). The updated addendum should contain detailed justification as to why it is considered necessary and appropriate to leave each of the identified significant matters in each of the following clauses to delegated legislation:

• clauses 6 and 7 – in relation to conditions to be met for material to be considered cyber-bullying or cyber abuse material;

• clause 13 – in relation to the definition of 'social media service';

• clause 13A – in relation to the definition of 'relevant electronic service';

• clause 14 – in relation to the definition of 'designated internet service' and 'exempt services';

• 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;

• clauses 52 and 59 – in relation to periodic and non-periodic reporting obligations for service providers;

• clause 86 – in relation to exempt provisions of an intimate image;

• clause 108 – in relation to the restricted access system;

• subclause 145(1) – in relation to industry standards;

• clause 151 – in relation to service provider determinations;

• clause 152 – in relation to exemptions from service provider determinations; and

• subclause 235(2) – in relation to an exemption of a specified law of a State or Territory, or a specified rule of common law or equity, from the operation of subsection 235(1).

2.58 The committee draws its significant scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of leaving a broad range of significant matters in the bill to delegated legislation.

2.59 In addition, the committee draws to the attention of senators its significant scrutiny concerns with respect to the broad discretionary power granted to the Commissioner by provisions in the bill that leave significant matters to delegated legislation. In particular, the committee leaves to the Senate as a whole the appropriateness of leaving the following significant matters to delegated legislation in circumstances where there is limited guidance on the face of the bill to constrain or guide the Commissioner’s discretionary powers in relation to them:

• the 'restricted access system' under clause 108;

• 'industry standards' under subclause 145(1); and

• 'service provider determinations' under clause 151 and exemptions from such determinations under clause 152.

2.60 The committee also draws these matters to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.

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[19] Clauses throughout the bill as listed. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iv).

[20] Senate Scrutiny of Bills Committee, Scrutiny Digest 5 of 2021, pp. 17–19.

[21] Senate Scrutiny of Bills Committee, Scrutiny Digest 6 of 2021, pp. 66–68.

[22] The minister responded to the committee's comments in a letter dated 4 March 2021. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 7 of 2021 available at: www.aph.gov.au/senate_scrutiny_digest.