Explanatory Memorandum
(Circulated by the authority of the Minister for Communications, Senator the Honourable Mitch Fifield)NOTES ON CLAUSES
Clause 1 - Short title
Clause 1 is a formal provision specifying the short title for the Bill which, when enacted, is to be cited as the Enhancing Online Safety for Children Amendment Act 2017.
Clause 2 - Commencement
Clause 2 provides for the commencement of the Bill. The provisions specified in column 1 of the table will commence, or will be taken to have commenced, on the day specified in column 2 of the table.
The whole of the Bill will commence on the day after the Bill receives the Royal Assent.
Clause 3 - Schedule(s)
Clause 3 provides that each Act specified in the Schedule to the Bill is amended or repealed as set out in that Schedule and any other item in the Schedule has effect according to its terms.
There is one Schedule to the Bill. Schedule 1, Part 1 amends the Enhancing Online Safety for Children Act 2015. Part 2 of Schedule 1 makes several consequential amendments to a range of Commonwealth Acts which refer to the Act or the Children's e-Safety Commissioner by name. Part 3 of Schedule 1 sets out a transitional provision relating to the actions of the Children's e-Safety Commissioner and the Online Safety Special Account, and two savings provisions.
Schedule 1--Amendments
Part 1 - Main amendments
Enhancing Online Safety for Children Act 2015
Item 1 - Title
Item 1 amends the long title of the Enhancing Online Safety for Children Act 2015 (the Act) by omitting the word 'children' and substituting 'Australians'. The new long title would be 'An Act to enhance online safety for Australians, and for other purposes'.
Item 2 - Section 1
Item 2 amends the short title of the Act. The new short title would be the Enhancing Online Safety Act 2015.
A note accompanies item 2 to remind readers of section 10 of the Acts Interpretation Act 1901 which provides that if another amendment of the Act is described by reference to the Act's previous short title, that other amendment will be taken to have effect after the commencement of item 2 as an amendment of the Act under its amended short title.
Item 3 - Section 3
Item 4 - Section 3
Item 5 - Section 3
Item 6 - Section 3
The simplified outline of the Act at section 3 is amended by items 3- 6 to reflect the new name of the Commissioner ('eSafety Commissioner'), and the expanded roles of the eSafety Commissioner to promote online safety for all Australians, not just children, and its ongoing Commonwealth coordination role in relation to online safety for children. A minor adjustment is also made to the dot point describing the eSafety Commissioner's administration of the online content scheme under the Broadcasting Services Act 1992 (the BSA), by removing the reference to the 'scheme that was previously administered by the ACMA', as this is now largely historical. Item 5 makes a minor adjustment to the leading wording to the summary dot point regarding the complaints system to clarify that the complaints system pertains to cyber-bullying material targeted at an Australian child.
Item 7 - Section 4
Item 7 inserts a new definition into section 4 for the expression, 'Australians', which means individuals who are ordinarily resident in Australia. This is a necessary consequential change stemming from the expansion of the Commissioner's roles and functions to cover Australians more generally rather than only Australian children and persons at risk of family or domestic violence.
A residential test has continued to be adopted for consistency with the definition of Australian child which applies a residential test.
Item 8 - Section 4 (definition of Children's Online Safety Special Account )
Item 8 repeals the definition of 'Children's Online Safety Special Account'. This change is consequential to the re-naming of the Special Account by item 23 (see below for further details).
Item 9 - Section 4 (definition of Commissioner )
This item changes the definition of 'Commissioner' to reflect the new title of the office of the 'eSafety Commissioner'.
Item 10 - Section 4
Item 10 inserts a new definition of the expression, 'online safety for Australians'. The substance of the new definition mirrors the existing definition of 'online safety for children', however expands it to refer to all Australians. The definition of 'online safety for children' has been retained as the complaints scheme for cyber-bulling material will remain confined to material that targets Australian children rather than Australians more generally. The expanded title of the Commissioner will reflect the expansion of a range of 'soft functions' of the Commissioner to encompass all Australians, not just children. These 'soft functions' are set out in further detail at section 15 of the Act, and include activities such as promoting online safety, supporting and encouraging the implementation of measures to improve online safety, conducting research in relation to online safety and providing advice in relation to online safety.
Item 11 - Section 4
This item inserts a new definition of 'Online Safety Special Account'. It is defined to mean the Online Safety Special Account referred to in section 72 of the Act. Item 23 provides more details about the account name change.
Item 12 - Subsection 12(1)
Item 12 repeals subsection 12(1) of the Act and substitutes a new one. The change is made to ensure that the Commissioner's obligations in respect of the CROC continue to be confined to the performance of the Commissioner's functions under the Act in respect of Australian children.
Item 13 - Part 2 (heading)
This item updates the heading of Part 2 of the Act, by changing it from 'Children's e-Safety Commissioner' to 'eSafety Commissioner', commensurate with the change made to section 14 of the Act by item 16.
Item 14 - Section 13
Item 14 updates the simplified outline at section 13 to reflect the new Commissioner's title, the expanded general functions of promoting online safety for Australians, and coordinating activities relating to online safety for Australian children. It is noted that paragraph (b) in the second dot point in the replacement outline reflects the previous stand-alone dot point; the Commissioner's responsibilities for administering a complaints system for cyber-bullying material will remain confined to material targeting Australian children. This is because while the Government recognises that online dangers such as cyber-bullying apply to both adults and children, there are existing avenues, including existing criminal laws, which apply to using the internet to menace and harass people of all ages.
In our society, there are a range of areas where extra protections are put in place for children consistent with Australia's obligations under the CROC. The Government considers child victims of cyber-bullying a priority.
The Government does not consider there is any need to create any new powers to investigate cyberbullying complaints between adults at this time.
A minor adjustment is also made to the dot point describing the eSafety Commissioner's administration of the online content scheme under the BSA, by removing the reference to the 'scheme that was previously administered by the ACMA', as this is now largely historical.
Item 15 - Section 14 (heading)
Item 16 - Section 14
Item 17 - Section 14 (note)
Section 14 of the Act provides for the establishment of the statutory office of the Commissioner. Similar to the changes proposed by item 13, items 15 and 16 update the title of the heading to section 14 and section 14 itself to reflect the change in the title of the office of the Commissioner. Item 17 makes a minor consequential modification to the note accompanying section 14 to reflect the Commissioner's new title.
A note accompanies item 16 to remind readers that section 25B of the Acts Interpretation Act 1901 provides that the office continues in existence under the new name so that its identity is not affected.
Item 18 - Paragraphs 15(1)(b), (c) and (e) to (l)
Item 19 - Subparagraph 15(1)(p)(i)
Section 15(1) sets out the functions of the Commissioner. Items 18 and 19 respectively update all occurrences of 'online safety for children' with 'online safety for Australians' in paragraphs 15(1)(b), (c), and (e) to (l) inclusive and subparagraph 15(1)(p)(i). The effect of this change is that the key functions set out in those paragraphs would cover:
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- promoting online safety for Australians (paragraph (b));
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- supporting and encouraging the implementation of measures to improve online safety for Australians (paragraph (c));
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- disseminating information relating to online safety for Australians (paragraph (e));
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- supporting, conducting and evaluating educational and community awareness programs relevant to online safety for Australians (paragraph (f));
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- making grants of financial assistance relating to online safety for Australians (paragraph (g));
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- conducting research about online safety for Australians (paragraph (h));
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- providing reports and advice to the Minister about online safety for Australians (paragraph (i));
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- providing advice to the Minister about online safety for Australians (paragraph (j));
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- to consult and cooperate with other persons, organisations and governments on online safety for Australians (paragraph (l)); and
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- formulating guidelines and statements that recommend best practices for persons and bodies involved in online safety for Australians (subparagraph (p)(i)).
Paragraph 15(1)(d) remains unchanged as responsibility for coordination of activities relating to cyber risks across government, the private sector and the community resides within the Attorney-General's Department. The Commissioner works very closely with the Attorney-General's Department in undertaking its activities relating to online activities for individuals other than children.
Subparagraph 15(1)(p)(ii) also remains unchanged as it pertains to the complaints system for cyber-bullying material targeting Australian children, which is not being amended.
Item 20 - Part 8 (heading)
Item 21 -Section 71
Item 20 updates the heading of Part 8 of the Act, by changing it from 'Children's Online Safety Special Account' to 'Online Safety Special Account' commensurate with the change made to the Commissioner's title. A change is made to the simplified outline by item 21, to provide that the Special Account was established and will continue in existence with the new name of 'Online Safety Special Account'.
Item 22 - Section 72 (heading)
Item 23 - subsection 72(1)
Section 72 established the Children's Online Safety Special Account for the purposes of the Public Governance, Performance and Accountability Act 2013 and is administered by the ACMA (subclause (3)). In light of the expanded roles and functions of the Commissioner proposed by the Bill, it is necessary to alter the name of the Special Account; refer item 23. The Special Account will continue in existence and, by operation of the amendment at item 23, under the new name 'Online Safety Special Account'.
Item 24 - Paragraph 73(1)(b)
Item 25 - Section 74
Items 24 and 25 replace the occurrences of 'Children's Online Safety Special Account' from paragraph 73(1)(b) and section 74 respectively and substitute 'Online Safety Special Account', commensurate with the new Special Account's title.
Item 26 -Paragraph 74(a)
Section 74 sets out the purposes of the Special Account. Item 26 updates paragraph 74(a) by replacing the expression 'online safety for children' with 'online safety for Australians' to reflect the expanded functions of the Commissioner.
As a result of this change, the first specified purpose of the Special Account will be to enhance online safety for Australians. The other legislated purposes of the Account are unchanged.
Item 27 - Paragraph 80(1)(g)
Subsection 80(1) provides for the Commissioner to disclose information that will enable or assist an authority listed in paragraphs 80(1)(a) to (g), to perform or exercise any of the authority's function or powers. The listed authorities include, the ACMA, the National Children's Commissioner, the Australian Federal Police, the Director of Public Prosecutions, an authority of a State or Territory responsible for enforcing one or more laws of the State or Territory, an authority of a foreign country responsible for regulating matters relating to the capacity of children to use social media services and electronic services in a safe manner
Specifically, paragraph 80(1)(g) currently allows for the disclosure of information obtained by the Commissioner as a result of the performance of a function by the Commissioner to an authority of a foreign country responsible for regulating matters relating to the capacity of children to use social media services and electronic services in a safe manner. Item 27 removes the reference to 'children' in paragraph 80(1)(g) and substitutes 'individuals' in its place.
While item 27 does not amend or broaden the disclosure power in paragraph 80(1)(g) or any of the other paragraphs in subsection 80(1), the expansion of the general functions of the Commissioner by Items 18 and 19, together with item 27, means that a broader class of information could potentially be disclosed under subsection 80(1). In other words, the Commissioner will be permitted to disclose a broader class of information to any of the specified authorities if the Commissioner is satisfied that it would enable or assist the particular authority to perform or exercise any of its functions or powers.
Importantly, item 27 does not compel the Commissioner to disclose any information, and further, the Commissioner determines the extent of the information that is to be disclosed by reference to whether, in the Commissioner's view, it will enable or assist the relevant authority to perform or exercise its powers or functions. The Commissioner is also able to impose conditions to be complied with in relation to any information disclosed. It is expected that the Commissioner will, as a matter of best practice, undertake privacy impact assessments before making any disclosures under subsection 80(1) and only disclose the type and level of information that it determines is absolutely necessary to enable or assist the relevant authority perform or exercise its powers or functions. For example, for a proposed disclosure under the authorisation to a listed authority other than the Australian Federal Police or the Director of Public Prosecutions, it is expected that any personal information disclosed by the Commissioner would be de-identified rather than identified personal information to minimise any adverse privacy impacts. Conversely, if the disclosure were to assist an enforcement body in the investigation and or prosecution of a criminal nature, it may be reasonable for personal information to be disclosed by the Commissioner. A case-by-case assessment would be undertaken by the Commissioner in each instance.
Part 2-Consequential amendments
Part 2 of Schedule 1 of the Bill makes a number of consequential amendments to several Commonwealth Acts which are necessary as a result of the change made by item 16 to the Commissioner's title.
Australian Communications and Media Authority Act 2005
Item 28 -Subparagraphs 57(aa)(i) and (ii)
Paragraph 57(aa) of the Australian Communications and Media Authority Act 2005 (ACMA Act) requires the ACMA, in its annual report, to include details of employment-related costs for staff performing duties relating to the Commissioner's functions and powers, as well as other expenditure incurred by the Commonwealth on the Commissioner's functions and powers. Item 28 replaces all occurrences of 'Children's e-Safety Commissioner's' in the paragraph with 'eSafety Commissioner's'. This represents a minor name change, and no substantive changes are proposed to any aspects of the ACMA Annual Report.
Item 29 - Paragraph 59D(1)(la)
Paragraph 59D(1)(la) of the ACMA Act empowers an ACMA official, where authorised in writing by the ACMA Chair, to disclose authorised disclosure information to specific authorities to allow disclosure of such information to be made to the Commissioner.
Item 29 updates the Commissioner's title to reflect the new title of 'eSafety Commissioner'.
Broadcasting Services Act 1992
Item 30 - Subsection 6(1) (definition of Commissioner )
Subsection 6(1) of the BSA defines the Commissioner for the purposes of the BSA. Item 30 updates the definition to refer to the Commissioner's new title, 'eSafety Commissioner'.
Item 31 -Paragraph 169A(a)
Item 32 - Paragraph 112(1)(d) of Schedule 7
Item 31 updates the title of the Act referred to in paragraph 169A(a) from 'Enhancing Online Safety for Children Act 2015' to 'Enhancing Online Safety Act 2015'. A similar change is made to paragraph 112(1)(d) of Schedule 7 by item 32. These two changes are consequential to items 1 and 2 of the Schedule.
Criminal Code Act 1995
Item 33 - Paragraph 273.9(5)(a)
Item 34 - Paragraph 474.21(4)(a)
Item 35 - Paragraph 474.24(4)(a)
The Criminal Code establishes certain offences for crimes relating to child pornography, such as possession, production, distribution etc. of child pornography (Division 273) or using a carriage service for child pornography material (Subdivision D of Division 474). Paragraphs 273.9(5)(a) and 474.21(4)(a) provide defences for persons who might otherwise be criminally liable for certain crimes under the above Divisions while engaging with child pornography materials in good-faith for the sole purpose of assisting the Commissioner to detect prohibited content or potential prohibited content for the purposes of Schedules 5 and 7 to the BSA.
Items 33, 34 and 35 update the title of the Commissioner from 'Children's e-Safety Commissioner' to 'eSafety Commissioner' in paragraph 273.9(5)(a), 474.21(4)(a), 474.24(4)(a) of 'the Criminal Code. These represent minor consequential changes to these provisions.
Freedom of Information Act 1982
Items 36 and 37 - Division 1 of Part II of Schedule 2
Subsection 7(2) of the Freedom of Information Act 1982 (FOI Act) exempts certain documents held by certain persons, bodies and entities from the application of the FOI Act. Division 1 of Part II of Schedule 2 lists the class of documents of the exempted bodies. Items 36 and 37 amend this division to replace the existing exemption for the Children's e-Safety Commissioner with a new one to reflect the Commissioner's new title. The substance of the exemption remains the same, namely that the Commissioner is exempted from releasing to the public particular content-service documents or internet content documents relating to the performance of a function, or the exercise of a power under Schedules 5 and 7 to the BSA.
Telecommunications Act 1997
Item 38 - Section 284 (heading)
Item 39 - Subparagraph 284(1A)(a)(i)
Item 40 - Subparagraph 284(1A)(a)(ii)
Item 41 - Paragraph 284(1A)(b)
Item 42 - Section 299 (heading)
Item 43 - Subsection 299(1A)
Item 44 - Section 299 (note)
Item 45 - Section 579
Item 46 - Subsection 581(2A)
Item 47 - Paragraphs 581(2B)(a), (b) and (c)
Subsection 284(1A) of the Telecommunications Act 1997 (Tel Act) allows eligible persons and eligible number-database persons to disclose information or a document to the Commissioner or an ACMA staff member whose duties relate to the performance of the Commissioner's functions where that information or document may assist the Commissioner in carrying out his or her functions or powers. This represents an exemption to sections 276 and 277.
Subparagraphs 299(1A)(a)(i) and (ii) of the Tel Act provide a similar secondary disclosure/use exemption in relation to information or a document disclosed to the Commissioner under subsection 284(1A).
Subsections 581(2A) and (2B) of the Tel Act allow the Commissioner to give written directions to carriers or service providers in connection with his or her functions or powers. Section 579 is a simplified outline to part 34 and incudes summary points about the Commissioner's direction powers.
Items 39-41, 43, and 45-47 replace references to 'Children's e-Safety Commissioner' (wherever occurring) with 'eSafety Commissioner' in various provisions under the Tel Act. These changes are consequential to the proposed new title of the office.
Items 38, 42 and 44 make minor amendments of an editorial nature.
Item 38 updates the heading of section 284 of the Tel Act to include a reference to the eSafety Commissioner; this is appropriate given that subsection 284(1A) deals with permitted disclosure of information or documents to the eSafety Commissioner. Item 42 updates the heading of section 299 in a similar way, in recognition of subsection 299(1A) which relates to permitted disclosures to assist the eSafety Commissioner to carry out or perform his or her functions.
Item 44 updates the note accompanying section 299 to include a reference to the eSafety Commissioner.
Part 3-Saving and transitional provisions
Item 48 - Transitional provision-Children's e-Safety Commissioner
Subitem 48(1) ensures that any thing done by, or in relation to, the Children's e-Safety Commissioner under an Act before the commencement of the Act will continue to have effect on and after that commencement as if it had been done by, or in relation to, the eSafety Commissioner.
Subitem 48(2) makes clear that subitem 48(1) does not limit the operation of subsection 25B(1) of the Acts Interpretation Act 1901. That provisions deals with alterations of names of an office.
Item 49 - Saving provision-protection from criminal proceedings
Clause 112 of Schedule 7 to the BSA operates to protect the Children's e-Safety Commissioner, and the Classification Board and Classification Review Board from criminal proceedings in connection with the exercise of relevant powers or performance of relevant functions under Schedule 5 to the BSA. Item 49 makes clear that the protection continues to apply on and after the commencement of the Act in relation to a person who was the Children's e-Safety Commissioner at any time before that commencement.
Item 50 - Saving provision-agencies exempt in respect of particular documents
Item 50 provides that Division 1 of Part II of Schedule 2 to the FOI Act (in the form in force immediately before the commencement of the Act, will continue in force on and after that commencement in relation to documents of the Children's e-Safety Commissioner. This ensures that retitling of the office of the Commissioner does not affect the FOI exemption which applied to the Commissioner when the office was named the Children's e-Safety Commissioner.
Item 51 - Transitional rules
To ensure that there is a smooth transition in the renaming of the Commissioner's office, subitem 51(1) confers a new power on the Minister to make rules prescribing dealing with matters of a transitional nature relating to the amendments made by the Bill.
As the rule making power is intended to be limited to administrative matters, subitem 51(2) sets out limitations on the rules. The rules cannot, for example, create an offence or civil penalty; provide powers of arrest or detention; impose a tax; or amend the Act.
This transitional provision is included as a safety net and is expected to be used only as a last resort. Any rule made by the Minister in reliance of this power would be subject to parliamentary scrutiny as the rule would be a legislative instrument.