House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Communications, Urban Infrastructure, Cities and the Arts, the Hon Paul Fletcher MP)

Notes on Clauses

Clause 1: Short Title

Clause 1 provides that the Bill, when enacted, may be cited as the Online Safety

(Transitional Provisions and Consequential Amendments) Act 2021.

Clause 2: Commencement

The table at clause 2 provides for the commencement of the Bill.

Item 1 of the table provides that clauses 1 to 3, and anything else not covered in the table commences on the day the Bill receives the Royal Assent.

Item 2 of the table provides that Schedule 1 of this Bill will commence at the same time as the Online Safety Act 2021 commences, and provides that the provisions in the Bill will not commence if the Online Safety Bill does not commence.

Item 3 of the table provides that Schedule 2, Part 1 of this Bill will commence at the same time as the Online Safety Act 2021 commences, and provides that the provisions in the Bill will not commence if the Online Safety Bill does not commence.

Item 4 of the table provides that Schedule 2, Part 2 of this Bill will commence at the later of the commencement of the provisions covered by table item 2, and the commencement of Schedule 3 of the Surveillance Legislation Amendment (Identify and Disrupt) Act 2021.

Item 5 of the table provides that Schedule 2, Part 3 of this Bill will commence at the same time as the Online Safety Act 2021 commences, and sets the circumstances under which the provisions do not commence at all. Paragraph (a) provides that the provisions in Schedule 2, Part 3 of this Bill will not commence if the Online Safety Bill does not commence. Paragraph (b) provides that if Schedule 1 to the Export Market Development Grants Legislation Act 2020 commences before the commencement of the Online Safety Act 2021, then the provisions in Schedule 2, Part 3 of this Bill do not commence at all.

Item 6 of the table provides that Schedule 3 of this Bill will commence at the same time as the Online Safety Act 2021 commences, and provides that the provisions in the Bill will not commence if the Online Safety Bill does not commence.

The note sets out that the table relates only to the provisions in this Bill, as originally enacted, and does not apply to any later amendments of this Bill once it is commenced.

Subitem (2) provides that any information in column 3 of the table is not part of the Bill, and may be edited in any published version of this Bill.

Clause 3: Schedules

This clause provides that the legislation that is specified to be amended or repealed as set out in the Schedules has effect according to the terms of the relevant Schedule.

SCHEDULE 1 - REPEAL OF THE ENHANCING ONLINE SAFETY ACT 2015

Enhancing Online Safety Act 2015

Clause 1: The whole of the Act

Clause 1 repeals the Enhancing Online Safety Act 2015. This item is intended to commence at the same time the Online Safety Act 2021 commences.

SCHEDULE 2 - AMENDMENTS

Part 1 - General Amendments

A New Tax System (Goods and Services Tax) Act 1999

Item 1 - Subparagraph 38-570(3)(a)(ii)

This item replaces a reference to "Schedule 5 to the Broadcasting Services Act 1992" with a reference to the "Online Safety Act 2021" and is consequential to the repeal of Schedule 5 by item 30 of Schedule 2 of this Bill.

Subparagraph 38-570(3)(a)(ii) of a New Tax System (Goods and Services) Tax Act 1999 relates to whether something is an exempt taxable supply, and telecommunication supplies made under arrangements for global roaming in the indirect tax zone by certain Australian residents, including 'internet service providers as defined in Schedule 5 to the Broadcasting Services Act 1992'.

Broadcasting Services Act 1992 (BSA)

Items 2 to 13, 19, 33 to 36, 38, 39, 41 to 44, 48 to 53, 55, 56 - Amending and repealing terminology (online content scheme)

These items make amendments to, and repeal terminology in, the BSA to reflect that the online content scheme previously in Schedules 5 and 7 of the BSA, and the eSafety Commissioner's role as regulator of those schemes, is to be incorporated in the new Online Safety Bill.

Items 14 to 16 - Registered codes of practice

These items repeal or amend the definition of registered codes of practice to reflect that the development of industry codes of practice in relation to online content are addressed in the online content scheme within the Online Safety Bill.

Item 17 and 18 - Omitting (1) and repealing subsection 10A(2)

Item 17 omits '(1)' and Item 18 repeals subsection 10A(2) which provided that Part 2.5 of the Criminal Code did not apply to an offence against Schedule 5 of the BSA. This change is required to reflect that the online content scheme previously in Schedules 5 and 7 of the BSA, is to be incorporated in the new Online Safety Bill.

Item 20 - Paragraph 130L(fa)

Item 20 repeals paragraph 130L(fa), which relates to a code registered, or a standard determined under Part 4 of Schedule 6 of the BSA.

Item 21, 22 and 24 to 28 - Commissioner's powers

These items amend terminology or repeal sections and subsections of the BSA which refer to powers provided to the Commissioner. Repealed sections relate to the powers for the Commissioner to give written notices, and powers related to investigations, including the protections to a person who gives evidence or produces documents as part of an investigation by the Commissioner. The relevant powers to which the repealed sections and subsections applied are expressed in the Online Safety Bill.

Item 23 - Subsection 173(1)

Item 23 omits subsection 173(1), which refers to a notice in writing provided by the Australian Communications and Media Authority to a person summoning that person to undertake the provisions in paragraphs 173(1)(a) and 173(1)(b).

Item 29 to 30 - Section 216B and Schedule 5

These items repeal parts of the BSA (section 216B and Schedule 5) which set up a system for regulating certain aspects of the internet industry. The online content scheme previously in Schedules 5 and 7 of the BSA, is to be incorporated in the new Online Safety Bill.

Item 31, 32 and 54 - References to Online Safety Act 2021

These items omit references to "Enhancing Online Safety Act 2015" or "Schedule 5" from relevant sections, substituting "Online Safety Act 2021", reflecting that the provisions to which the Enhancing Online Safety Act 2015 and Schedule 5 refer have been moved to the Online Safety Bill.

Item 37 and 45 to 47 - Online content scheme terminology

These items omit the wording "prohibited content or potential prohibited content" from clauses, paragraphs and definitions to which the items relate, and substitute the words with the wording "content that is class 1 material or content that is class 2 material covered by paragraph 107(1)(a), (b), (c), (d) or (e) of Online Safety Act 2021".

Item 40 - Clause 2 of Schedule 7

Item 40 inserts references into clause 2 of Schedule 7 that provide for the definition of class 1 and class 2 material to have the same meaning as the Online Safety Bill upon commencement.

Crimes Act 1914

Item 57 to 58 - References to Online Safety Act 2021

These items omit references to "Enhancing Online Safety Act 2015" from relevant sections, substituting "Online Safety Act 2021", reflecting that the provisions to which the Enhancing Online Safety Act 2015 refers have been moved to the Online Safety Bill.

Criminal Code Act 1995

Item 59 and 68 - Paragraphs 273.9(5)(a), 273.9(5)(b), 474.24(4)(a) and 474.24(4)(b) of the Criminal Code

These items repeal paragraphs and substitute wording referring to codes and standards that were not previously expressed in the Criminal Code. The substitution of new wording gives effect to new codes and standards to be administered by the Commissioner upon commencement of the Online Safety Bill.

Item 60 - Section 473.1 of the Criminal Code

Item 60 aligns the definition of an 'Australian hosting service provider' in section 473.1 of the Criminal Code with the definition in the Online Safety Bill by inserting wording in section 473.1 of the Criminal Code that refers to an 'Australian hosting service provider' having the same meaning as in the Online Safety Act 2021.

Item 61 and 62 - Section 473.1 of the Criminal Code (definitions of internet content host and internet service provider )

These items omit the wording "Schedule 5 to the Broadcasting Services Act 1992", and substitutes it with the wording "Online Safety Act 2021" upon commencement of the Online Safety Bill. This change reflects that the online content scheme, previously in Schedules 5 and 7 of the BSA, is to be incorporated in the new Online Safety Bill.

Item 63 and 69 - Paragraphs 473.5(d) and 474.25(a) of the Criminal Code

These items omit the wording "internet content host", and substitutes it with the wording "Australian hosting service provider" to reflect the definitions used in the Online Safety Bill.

Item 64 - Subsection 474.17(1) of the Criminal Code (penalty)

Item 64 will repeal the existing maximum penalty of three years's imprisonment for the offence contained at subsection 474.17(1) and substitute with a maximum penalty of five years' imprisonment.

The offence at subsection 474.17(1) captures abuse facilitated by technology (such as via a mobile phone or the internet) and the increase in the penalty for this offence sends a strong message that this conduct is serious. Examples of conduct captured by this offence include serious cyber-abuse, especially where there is a domestic or family violence context, or where the victims of the abuse are vulnerable or marginalised.

The increased penalty will ensure that community expectations are met, the impact on victims is appropriately addressed and that there is adequate deterrence in light of the increased prevalence of cyber-abuse. The harm caused by cyber-abuse is significant, especially where technology is misused to facilitated abuse in a family or domestic violence context, or directed at vulnerable persons. Serious cyber-abuse erodes Australians' ability to safely participate online and can have extremely serious psychological and other harmful impacts on targets of abuse.

Item 65 - Subsection 474.17A(1) of the Criminal Code (penalty)

Item 65 will repeal the maximum penalty of five years for the offence within the existing standard aggravated offence at section 474.17A and substitute with a maximum penalty of six years.

The standard aggravated offence at section 474.17A specifically captures abuse facilitated by technology (such as via a mobile phone or the internet), involving private sexual material and sends a strong message that this conduct is serious. This offence will attract a maximum penalty of six years' imprisonment.

The definition of private sexual material only applies to depictions of persons who are, or appear to be, 18 years of age or older. Material of a sexual nature that depicts persons who are, or appear to be, under the age of 18 is captured by the offences related to child abuse material, including in sections 474.22 and 474.23 of the Criminal Code.

Amended aggravated offence at section 474.17A(4) for the underlying offence at section 474.17, involving three or more civil penalty orders

Item 65 amends the special aggravated offence at section 474.17A(4) for where a person commits an offence against section 474.17 of the Criminal Code, and before the commission of that offence, three or more civil penalty orders were made against the person under subsection 75(1) of the Online Safety Act 2021 and the contraventions of section 91 of the Online Safety Act 2021 that relate to removal notices given under sections 88, 89 or 90 of that Act introduced in the Bill.

Item 65 leaves the special aggravated offence within subsection 474.17A(4) and expands the scope of civil penalty orders that trigger this aggravated offence beyond just those relating to private sexual material. This recognises that a person may receive three or more civil penalty orders against the Office of the eSafety Commissioner's civil penalty scheme for conduct which may be equally serious but does not involve private sexual material.

When conviction set aside at section 474.17B

Subsection 474.17A(8) makes it clear that a conviction against subsection 474.17A(4) must be set aside in the event that one or more orders made against the person under the Regulatory Powers (Standard Provisions) Act 2014 in relation to contraventions of proposed subsections 75(1) or 91 of the Online Safety Act 2021 are set aside or reversed on appeal and, if the order or orders in relation to contraventions of subsections 75(1) or 91 of the Online Safety Act 2021 had never been made then the person could not have been convicted of the offence under subsection 474.17A(8).

Subsection 474.17A(9) provides that, should a conviction against subsection 474.17A(1) be set aside under subsection 474.17A(8), this does not prevent the prosecution instituting proceedings under the underlying offence in section 474.17 or section 474.17A.

Item 66 and 67 - Paragraph 474.17A(4)(d) and 474.17A(13)(a) of the Criminal Code

Item 66 and 67 replace references to contraventions of subsection 44B(1) of the Enhancing Online Safety Act 2015 and substitutes it with language that refers to contraventions of subsection 75(1) of the Online Safety Act, and contraventions of section 91 of the Online Safety Act that relate to removal notices given under section 89 of that Act.

These items omit references to "Enhancing Online Safety Act 2015" from relevant sections, substituting "Online Safety Act 2021", reflecting that the provisions to which the Enhancing Online Safety Act 2015 refers have been moved to the Online Safety Bill.

Item 72 - Section 474.30 of the Criminal Code (definition of hosting service )

Item 72 omits the wording "9C(a)(ii) and (b)(ii)", and substitutes it with the wording "17(a)(ii) and (b)(ii)".

Item 74 - Section 474.44 of the Criminal Code

Item 74 repeals Section 474.44 of the Criminal Code, and substitutes it with language that refers to Part 9 of the Online Safety Act 2021.

Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Act 2018

Item 75

Item 75 repeals the Enhancing Online Safety Act 2015. This item is intended to commence at the same time the Online Safety Act 2021 commences.

Freedom of Information Act 1982

Item 76, 78, 80 to 82, 84, 85, 87 to 90 - References to Online Safety Act 2021

These items provide for the wording ", as in force before the commencement of the Online Safety Act 2020" to be inserted after relevant wording in the subsections referenced in this Bill.

Item 77 and 79 - Subsection 4(1)

These items insert wording into the Freedom of Information Act 1982 that refer to an "exempt online content scheme document" and "exempt online content scheme material" within the meaning of the Online Safety Act 2021.

"Exempt online content scheme document" means a document containing material (within the meaning of the Online Safety Act 2021), or a record of material (within the meaning of that Act), that is online content scheme material; or a document that sets out how to access, or that is likely to facilitate access to, material (within the meaning of the Online Safety Act 2021) that is online content scheme material, for example, by setting out the name of a website, an IP address, a URL or a password.

Item 83, 86 and 91 - Division 1 of Part II of Schedule 2

These items add wording to Division 1 of Part II of Schedule 2 to the Freedom of Information Act 1982 at the end of sections dealing with the Australian Communications and Media Authority, the Classification Board and the Commissioner to refer to exempt online content scheme documents under Part 9 of the Online Safety Act 2021.

In effect, these items provide FOI exemptions for classes of material ranging from Restricted Content (RC) or R 18+. These classes of material are currently exempted under separate FOI provisions. Specific FOI exemptions currently cover "offensive content-service content" or "offensive internet content", which includes "prohibited content" or "potential prohibited" within the meaning of Schedule 5 of the BSA. This content ranges in classification between RC or X 18+ and R 18+ (if access to the content is not subject to a restricted access system (section 20(1)(b) of the BSA) or MA 15+ (upon satisfaction of specific conditions (section 20(1)(c) of the BSA).

The effect of these provisions is that the exceptions to FOI access that apply in relation to information about Internet-content documents and content-service documents under Schedules 5 and 7 of the BSA are extended to information related to online content scheme documents under the Part 9 of the Online Safety Act 2021.

Interactive Gambling Act 2001

Item 92 and 94 - Section 4 (definitions of access and internet service provider )

These items omit the wording "Schedule 5 to the Broadcasting Services Act 1992", as Schedule 5 of the BSA is repealed on commencement of this Bill. The wording is to be substituted with the wording "the Online Safety Act 2021".

Item 93 - Section 4 (definition of internet content )

Item 93 provides for the repeal of the definition of internet content in section 4.

Item 95 and 96 - Subsections 36(2) and 36(3)

These items omit the wording "Schedule 5 or 7 to the Broadcasting Services Act 1992", to give effect to the repeal of aspects of the BSA on commencement of this Bill. The wording is to be substituted with the wording "Division 7 of Part 9 of the Online Safety Act 2021".

Telecommunications Act 1997

Item 97 - Section 7 (definition of internet service provider )

Item 97 omits the wording "Schedule 5 to the Broadcasting Services Act 1992", and substitutes it with the wording "the Online Safety Act 2021".

Telecommunications (Interception and Access) Act 1979

Item 98 - Subparagraph 187A(3)(b)(ii) (definition of internet service provider )

This item omits the wording "Schedule 5 to the Broadcasting Services Act 1992", as Schedule 5 of the BSA is repealed on commencement of this Bill. The wording is to be substituted with the wording "the Online Safety Act 2021".

Tobacco Advertising Prohibition Act 1992

Item 99 to 101 - Paragraph 16B(1)(d) and subsection 16B(2)

These items make amendments to the Tobacco Advertising Prohibition Act 1992 to replace references to "internet content host" with the wording "Australian hosting service provider", include a new reference to "Australian hosting service provider" and repeal the definition of internet content in subsection 16B(2).

Item 102 - Subsection 16B(2) (definition of internet service provider )

This item omits the wording "Schedule 5 to the Broadcasting Services Act 1992", as Schedule 5 of the BSA is repealed on commencement of this Bill. The wording is to be substituted with the wording "the Online Safety Act 2021".

Part 2 - Amendments contingent on the commencement of the Surveillance Legislation Amendment (Identify and Disrupt) Act 2020

Crimes Act 1914

Item 103 and 104 - Section 3ZZUK (definitions of account and electronic service )

These items omit references to "Enhancing Online Safety Act 2015" from relevant sections, substituting "Online Safety Act 2021", reflecting that the provisions to which the Enhancing Online Safety Act 2015 refers have been moved to the Online Safety Bill.

Part 3 - Amendments contingent on the non-commencement of the Export Market Development Grants Legislation Amendment Act 2020

Export Market Development Grants Act 1997

Item 105 to 109 - Section 57A and subsection 107(1)

These items amend, remove or repeal references to "prohibited content or potential prohibited content" by using terminology related to "class 1 material and class 2 material" to reflect the terminology used in the Online Safety Bill.

Part 4 - Amendments contingent on the commencement of the Federal Circuit and Family Court of Australia Act 2021

Online Safety Act 2021

Items 110-112 - Subsections 162(3), 164(3) and 165(3)

These items omit references to the "Federal Circuit Court of Australia" and substitutes it with references to the "Federal Circuit and Family Court of Australia" (Division 2).

SCHEDULE 3 - TRANSITIONAL AND APPLICATION PROVISIONS

Part 1 - eSafety Commissioner

Item 1 to 3 - Continuity of eSafety Commissioner

These items provide that the repeal of the Enhancing Online Safety Act 2015 does not affect the continuity of the Office of the Commissioner, and various administrative matters relating to the appointment of the Commissioner or person to act as the Commissioner in the event that these arrangements are in force immediately before the commencement of this Bill. This is because these arrangements have been made under subclauses of the Online Safety Bill.

Part 2 - Complaints and objections

Item 4 to 6 - Transitional - complaints about cyber bullying material (complaint made on behalf of an Australian child)

These items provide for complaints made regarding cyber-bullying material targeted at an Australian child, under various subsections of the Enhancing Online Safety Act 2015 prior to the commencement of this Bill, to apply as though the complaints were made under the relevant subclauses of the Online Safety Bill, provided the Commissioner has not taken actions at the time of commencement.

Part 4 - Notices

Item 12 to 14 - Pre-commencement of notices

These items provide for the continued applicability of provisions in the Enhancing Online Safety Act 2015 as they relate to notices that were in force immediately prior to the commencement of this Bill, despite the repeal of relevant sections and parts of the Enhancing Online Safety Act 2015. This means that relevant notices outlined in item 12 to 14 continue to be enforceable upon commencement of this Bill.

Item 7 to 10 - Transitional - complaints and objection notices about intimate images

These items provide for complaints made regarding intimate images, under various subsections of the Enhancing Online Safety Act 2015 prior to the commencement of this Bill, to apply as though the complaints were made under the relevant subclauses of the Online Safety Bill, provided the Commissioner has not taken actions at the time of commencement.

Part 3 - Provision of material etc.

Item 11 - Transitional - material

Item 11 provides that if material was posted on a service (i.e. social media service, relevant electronic service, or designated internet service), and that material was posted before the commencement of the Bill or its preceding legislation (for example, the Enhancing Online Safety Act 2015), then certain provisions of the Bill will not apply to that offending material.

For example, subclause 10A(3) provides that if an intimate image was posted on a social media service, a relevant electronic service, or a designated internet service before 1 September 2018 - the date the intimate images provisions of the Enhancing Online Safety Act 2015 commenced - then Division 3 of Part 3 of the Online Safety Bill (complaints about, and objections to, intimate images) and Division 3 of Part 6 of the Bill (intimate images must not be posted without consent etc.) will not apply to an offending intimate image, unless this intimate image was provided on the service after the start of 1 September 2018.

Part 5 - Protection from civil proceedings

Item 15 - Transitional - protection from civil proceedings

Subitem 15(1) provides that, despite the repeal of subsection 89(1) of the Enhancing Online Safety Act 2015, the subsection continues to apply for an act done before the commencement of this item, as if that repeal had not happened.

Subitem 15(2) provides that, despite the repeal of subsection 89(2) of the Enhancing Online Safety Act 2015 that the subsection continues to apply in relation to anything done in compliance with paragraphs (a) to (d), as if that repeal had not happened.

Subitem 15(3) provides that despite the repeal of subclause 88(1) of Schedule 5 to the BSA that the subclause continues to apply in relation to anything done before the commencement of this item, as if the repeal had not happened. Similarly, subitem 15(4) allows for the continuation of subclause 88(2) of Schedule 5 to the BSA, as if that repeal had not happened.

Subitem 15(5) provides that despite the repeal of subclause 111(1) of Schedule 7 to the BSA that the subclause continues to apply in relation to anything done before the commencement of this item, as if the repeal had not happened.

Subitem 15(6) provides that despite the repeal of subclause 111(2) of Schedule 7 to the BSA that the subclause continues to apply in relation to anything done before the commencement of this item, as if the repeal had not happened.

Subitem 15(7) provides that despite the repeal of subclause 111(3) of Schedule 7 to the BSA that the subclause continues to apply in relation to anything done before the commencement of this item, as if the repeal had not happened.

Item 16 - Transitional - liability for damages

Item 16 provides for the continued applicability of an act or matter done in good faith or omitted to be done under in the circumstances outlined in paragraphs (a) and (b) or conferred under circumstances outlined in paragraphs (c) and (d), despite the repeal of the Enhancing Online Safety Act 2015, and the provision of the BSA upon commencement of this item.

Item 17 - Transitional - protection from criminal proceedings

Item 17 provides that, in connection with the exercise of a power, or the performance of a function, conferred on the Commissioner by or under the repealed Enhancing Online Safety Act 2015 will continue to apply as if the repeal had not happened upon commencement of the item. Paragraphs 17(1)(a) to 17(1)(f) provide for the matters for which the power still applies upon commencement of the new item.

Subitem 17(2) provides the above continued applicability of the exercise of a power, or performance of a function, in relation to matters undertaken under clause 112 of Schedule 7 of the BSA, which will be repealed upon commencement of this item.

Subitem 17(3) ensures that, for the purposes of this item, the definition of possession includes having in custody or control.

Part 6 - Miscellaneous

Item 18 - Transitional - copies of material

Item 18 allows for copies of material made by the Commissioner under powers granted in section 94 of the Enhancing Online Safety Act 2015, to continue to apply as if that repeal had not happened so long as copies were made before the commencement of this item, and adhere to the limitations on the power under subsection 94(2) of the Enhancing Online Safety Act 2015 to be repealed.

Item 19 - Transitional - disclosure of information

Item 19 provides that information obtained by the Commissioner as a result of the performance of a function, or the exercise of a power, conferred on the Commissioner under either the repealed Enhancing Online Safety Act 2015, or a provision of the BSA repealed by this Bill will continue to apply as if that repeal had not happened. This item provides for this to occur despite the repeal of Part 9 of the Enhancing Online Safety Act 2015, which related to the disclosure of information.

Item 20 - Transitional - compensation for acquisition of property

Item 19 allows for the continued application of the constitutional safeguards outlined in section 95 of the Enhancing Online Safety Act 2015, upon commencement of this item as if it were not repealed by this Bill. The continued application of this provision is as it relates to the operation of the repealed Enhancing Online Safety Act 2015, or legislative rules made under that Act.

Item 21 - Application - subsection 273.9(5) of the Criminal Code

Item 59 of Schedule 2 of this Bill repeals subsection 273.9(5) of the Criminal Code that refers to defences to offences that a person may use in relation to the Commissioner's online content scheme functions in the BSA. Item 59 provides substitute text that refers to the Online Safety Act 2021. Item 21 of Schedule 3 clarifies that the amendments to subsection 273.9(5) of the Criminal Code made by this Act applies in relation to conduct engaged in after the commencement of this item.

Item 22 - Application - subsection 474.24(4) of the Criminal Code

Item 67 of Schedule 2 of this Bill repeals subsection 474.24(4)(a) and 474.24(4)(b) of the Criminal Code that refers to defences to offences in respect of child abuse material that a person may use in relation to the Commissioner's online content scheme functions in the BSA. Item 67 provides substitute text that refers to the Online Safety Act 2021. Item 22 of Schedule 3 clarifies that the amendments to subsection 474.24(4) of the Criminal Code made by this Act applies in relation to conduct engaged in after the commencement of this item.