Explanatory Memorandum
(Circulated by authority of the Minister for Communications, Urban Infrastructure, Cities and the Arts, the Hon Paul Fletcher MP)GENERAL OUTLINE
The Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021 (the Bill) is part of a legislative package, including the Online Safety Bill 2021, which will create a stronger online safety framework for Australians. The Bill deals with:
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- Consequential matters arising from the enactment of the Online Safety Bill;
- Increases to the maximum penalty for using a carriage service to menace, harass or cause offence under section 474.17 of the Criminal Code Act 1995 (Criminal Code) from three years' imprisonment to five years' imprisonment; and
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- Amendments to the aggravated offences and special aggravated offences in sections 474.17A and 474.17B of the Criminal Code to address issues of alignment and proportionality with the amendments to section 474.17 of the Criminal Code.
Schedule 1 to the Bill repeals the Enhancing Online Safety Act 2015 because, when passed, the Online Safety Bill will provide for much of the framework currently under the Enhancing Online Safety Act 2015, as well as provide additional powers to the Commissioner to keep Australians safe online.
Schedule 2 contains consequential amendments to other Acts arising from the enactment of the Online Safety Bill.
Schedule 3 contains transitional provisions for matters relating to the Commissioner, including the Commissioner's appointment, powers, obligations, investigations, liabilities, protections and applicability of notices at the time of enactment of the Online Safety Bill. Schedule 3 also contains application provisions relating to amendments in the Criminal Code.
Criminal Code amendments
The Bill seeks to combat the evolving use of the internet in facilitating abusive social interactions, including the distribution of intimate images and cyber-abuse, by amending offences in Division 474 in Part 10.6 of the Criminal Code which are specifically intended to prevent, deter and sanction, as well as educate and draw attention to the criminality of this conduct.
In May 2017, the Government, in conjunction with states and territories, agreed a national statement of principles relating to the criminalisation of the non-consensual sharing of intimate images. These amendments are consistent with those principles and will complement and expand upon existing offences in the Criminal Code for using a carriage service to menace, harass, or cause offence to meet the policy intention of stronger offences to capture serious online abuse.
The increase in penalties through these amendments will send a clear message to the community that serious cyber-abuse and image-based abuse is not acceptable in any circumstances.
The Bill expands upon the civil prohibition and civil penalty regime introduced in the Bill targeted at adult cyber-abuse, by amending criminal offences to apply to the most serious instances of cyber-abuse.
Section 474.17A will continue to only apply to the distribution of private sexual material depicting persons 18 years and over, ensuring no overlap with existing offences for distributing child pornography material, which carry significantly higher penalties.
The Bill increases the maximum penalty for the offence at subsection 474.17(1) of the Criminal Code, of using a carriage service in a menacing, harassing or offensive manner, from three to five years' imprisonment.
The Bill also increases the maximum penalty for the aggravated offence at subsection 474.17A(1) of the Criminal Code, of using a carriage service in a menacing, harassing or offensive manner, where the material involved is of a private sexual nature, from five to six years' imprisonment.
The maximum penalty of seven years' imprisonment for the special aggravated offence at subsection 474.17A will be maintained, ensuring that offenders with a proven pattern of concerning behaviour are eligible for a higher sentence.
The Bill also amends paragraph 474.17A(4)(d) of the Criminal Code to include notices issued under the proposed new cyber-abuse scheme for adults, as contained in Part 7 of the Online Safety Bill 2021. This would mean that amended subsection 474.17A(4) would also capture natural persons who, prior to the commission of the underlying offence, received three or more notices under the new adult cyber-abuse scheme.
A Statement of Compatibility with Human Rights is at Attachment A .
FINANCIAL IMPACT
The measures outlined in the Bill will have no financial impact on Government revenue.
REGULATION IMPACT STATEMENT
Consistent with the Government's Regulation Impact Statement (RIS) requirements, the Department certified a RIS with the Office of Best Practice Regulation. Details on the RIS can be found in the Explanatory Memorandum for the Online Safety Bill, to which this Bill relates.
Abbreviations used in the Explanatory Memorandum
Online Safety Bill Online Safety Bill 2021
Criminal Code Criminal Code Act 1995
BSA Broadcasting Services Act 1992
ICCPR International Covenant on Civil and Political Rights