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2013-2014
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
ENHANCING ONLINE SAFETY FOR CHILDREN BILL 2014
ENHANCING ONLINE SAFETY FOR CHILDREN (CONSEQUENTIAL
AMENDMENTS) BILL 2014
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Communications,
the Hon. Malcolm Turnbull MP)
ENHANCING ONLINE SAFETY FOR CHILDREN BILL 2014
ENHANCING ONLINE SAFETY FOR CHILDREN (CONSEQUENTIAL
AMENDMENTS) BILL 2014
OUTLINE
These bills implement Australian Government election commitments to enhance
online safety for children, including:
establishing a Children`s e-Safety Commissioner (Commissioner) to take a
national leadership role in online safety for children; and
implementing an effective complaints system, backed by legislation that will get
harmful cyber-bullying material targeted at an Australian child down quickly
from large social media sites.
The bills were developed following substantial public and stakeholder consultation,
including consideration of more than 80 submissions received in response to the
public discussion paper Enhancing Online Safety for Children` released in January
2014.
Enhancing Online Safety for Children Bill 2014
The Enhancing Online Safety for Children Bill 2014 (the Online Safety Bill) provides
for:
establishing the Children`s e-Safety Commissioner and sets out the
Commissioner`s functions and powers;
a complaints system for cyber-bullying material targeted at an Australian child;
a 2-tiered scheme for the rapid removal from large social media services of
cyber-bullying material targeted at an Australian child;
a mechanism for the Commissioner to give end-user notices to require a person
who posts cyber-bullying material targeted at an Australian child to remove the
material, refrain from posting further material or apologise to the child for
posting the material;
enforcement mechanisms for the Commissioner;
administrative provisions relating to the Commissioner;
the establishment of the Children`s Online Safety Special Account to fund the
Commissioner`s activities;
enabling the Commissioner to disclose information in specified circumstances;
and
other miscellaneous provisions.
Children's e-Safety Commissioner
Part 2 of the Online Safety Bill establishes the Commissioner and sets out the
Commissioner`s functions and powers. The Commissioner will be an independent
2
statutory office within the Australian Communications and Media Authority
(ACMA). A key function of the Commissioner will be to administer a complaints
system for cyber-bullying material targeted at an Australian child.
Other functions of the Commissioner will include promoting online safety for
children, coordinating relevant activities of Commonwealth Departments, authorities
and agencies, supporting, conducting, accrediting and evaluating educational and
community awareness programs, making grants and advising the Minister. The
Commissioner will also have the function of administering the online content scheme
set out in Schedules 5 and 7 to the Broadcasting Services Act 1992 (BSA) that was
previously administered by the ACMA and is being transferred to the Commissioner
without substantive amendment.
Complaints system
Part 3 of the Online Safety Bill establishes a complaints system for cyber-bullying
material targeted at an Australian child. Complaints will be able to be made to the
Commissioner by an Australian child or by a parent or guardian of the child. Other
responsible persons will also be able to make a complaint on behalf of an Australian
child, if the child authorises them to do so.
The Commissioner will have the power to investigate complaints and conduct such
investigations as the Commissioner thinks fit.
Social media services
Part 4 of the Online Safety Bill establishes a 2-tiered scheme for the rapid removal
from large social media services of cyber-bullying material targeted at an Australian
child.
Division 1 of Part 4 sets out a statement of Parliamentary expectations that each social
media service will comply with certain basic online safety requirements, those being
that a social media service has:
terms of use that prohibit the posting of cyber-bullying material;
a complaints scheme under which end-users of the service can seek to have
material that breaches the service`s terms of use removed; and
a contact person for the Commissioner to deal with.
The Commissioner will have the role of communicating that expectation to social
media service providers as far as practicable.
Tier 1 social media services
Division 2 of Part 4 provides for tier 1 social media services. The provider of a social
media service will be able to apply to the Commissioner for declaration of the service
as a tier 1 social media service (tier 1 service). The Commissioner will be required to
make such a declaration if satisfied that the service complies with the basic online
safety requirements and the service is not a tier 2 social media service.
The Commissioner will have the power to request that the provider of a tier 1 service
remove cyber-bullying material targeted at an Australian child within 48 hours where
the Commissioner receives a complaint that the material was not removed within
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48 hours (or such longer period as the Commissioner allows) following a complaint
made under the service`s complaints scheme.
There will be no direct enforcement measures in relation to tier 1 services. However,
if a tier 1 service repeatedly fails to comply with requests to remove material over a
12 month period, or the Commissioner is satisfied that the service does not comply
with the basic online safety requirements, the Commissioner may revoke the service`s
tier 1 status.
Tier 2 social media services
Division 3 of Part 4 provides for tier 2 social media services (tier 2 services). These
services are subject to direct regulation and accordingly are declared by the Minister,
following a recommendation from the Commissioner, by a legislative instrument
subject to Parliamentary disallowance.
The Commissioner must not make a recommendation that a social media service be
declared a tier 2 service if the service is a tier 1 service. The Commissioner also must
not make a recommendation unless satisfied that the service is a large social media
service or the provider of the service has requested tier 2 status. In deciding whether
to make a recommendation, the Commissioner must have regard to certain matters,
including whether the service complies with the basic online safety requirements,
whether the service has failed to apply for tier 1 status or has had tier 1 status revoked.
The Commissioner will have the power to give a social media service notice to the
provider of a tier 2 service requiring the provider to remove cyber-bullying material
targeted at an Australian child within 48 hours where the Commissioner receives a
complaint that such material on the tier 2 service was not removed within 48 hours (or
such longer period as the Commissioner allows) following a complaint made under
the service`s complaints scheme.
A person who fails to comply with a social media service notice may be subject to a
civil penalty. Other enforcement options will be available in the form of enforceable
undertakings and injunctions.
The Commissioner will maintain registers of tier 1 and 2 social media services.
The Commissioner will also be able to publish statements about non-compliant social
media services under Division 4 of Part 4 in respect of social media services failing to
comply with the basic online safety requirements, failing to comply with a request for
removal of cyber-bullying material, or failing to comply with a social media service
notice.
End-user notices
Part 5 of the Online Safety Bill enables the Commissioner to give an end-user notice
to a person who posts cyber-bullying material targeted at an Australian child requiring
the person to take all reasonable steps to ensure the removal of the material, refrain
from posting further material targeted at the child, or apologise to the child for posting
the material.
An injunction will be able to be sought from the Federal Circuit Court for a failure to
comply with an end-user notice.
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Other provisions
Part 6 of the Online Safety Bill adopts enforcement arrangements set out in the
Regulatory Powers (Standard Provisions) Act 2014 in respect of civil penalties,
enforceable undertakings and injunctions for the purposes of the Online Safety Bill.
Part 7 of the Online Safety Bill sets out administrative provisions relating to the
Commissioner, including provisions relating to appointment, employment terms and
conditions, supplementary powers, delegation of functions and powers, annual report,
requirements on the ACMA to assist the Commissioner and ministerial directions.
Part 8 of the Online Safety Bill establishes the Children`s Online Safety Special
Account which will be used to fund the Commissioner`s activities.
Part 9 of the Online Safety Bill enables the Commissioner to disclose information in
certain circumstances. This Part will enable the Commissioner to disclose information
to teachers or school principals to assist in the resolution of complaints made under
the Online Safety Bill, which may be particularly important in cases of cyber-bullying
among school children. Similarly, the Commissioner may disclose information to a
parent or guardian of an Australian child, who may need to be informed to assist in
the resolution of a complaint made under the Online Safety Bill.
Part 10 of the Online Safety Bill sets out other miscellaneous provisions, including
provisions in relation to merits review of decisions, protections from civil and
criminal proceedings and liability for damages, referral of matters to law enforcement
agencies and the power for the Minister to make legislative rules.
Enhancing Online Safety for Children (Consequential Amendments) Bill 2014
The Enhancing Online Safety for Children (Consequential Amendments) Bill 2014
(the Consequential Amendments Bill) deals with consequential matters arising from
the enactment of the Online Safety Bill.
Schedule 1 to the Consequential Amendments Bill contains amendments to the BSA
to:
give the Commissioner information gathering powers similar to those currently
possessed by the ACMA under Part 13 of the BSA;
change references in Schedules 5 and 7 to the BSA from the ACMA to the
Commissioner to reflect the transfer of administrative responsibility for the
Online Content Scheme in those Schedules to the Commissioner; and
make minor consequential amendments to provisions in those Schedules.
Schedule 2 to the Consequential Amendments Bill contains consequential
amendments to other Acts arising from the establishment of the Commissioner.
Schedule 3 to the Consequential Amendments Bill contains transitional provisions
relating to the transfer of administrative responsibility for the Online Content Scheme
in Schedules 5 and 7 of the BSA to the Commissioner.
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FINANCIAL IMPACT STATEMENT
The Commissioner will be established as an independent statutory office within the
ACMA. Funding for the Commissioner`s activities will be allocated to the Children`s
Online Safety Special Account (the Special Account) established under Part 8 of the
Online Safety Bill.
The funding to be allocated will be $6.7 million in 2014-15 and approximately
$11 million per annum thereafter.
The Commissioner`s approval will be required for any expenditure from the Special
Account.
The bills will not otherwise have a significant impact on Commonwealth expenditure
or revenue.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
Enhancing Online Safety for Children Bill 2014
Enhancing Online Safety for Children (Consequential Amendments) Bill 2014
These bills are compatible with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Overview of Bills
Certain material may be considered cyber-bullying material targeted at an Australian
child` under clause 5 of the Enhancing Online Safety for Children Bill 2014 (Online
Safety Bill), if the material satisfies the following conditions:
(a) the material is provided on a social media service or relevant electronic service;
(b) an ordinary reasonable person would conclude that it is likely that the material
was intended to have an effect on a particular Australian child;
(c) an ordinary reasonable person would conclude that the material would be likely
to have the effect on the Australian child of seriously threatening, seriously
intimidating, seriously harassing or seriously humiliating the Australian child;
(d) such other conditions (if any) as are set out in the legislative rules.
If all of these conditions are satisfied, under paragraphs 5(1)(d) - (e) of the Online
Safety Bill, the material is cyber-bullying material targeted at the Australian child and
the Australian child is the target of that material.
A recent study has estimated that, over a 12 month period, around 20 percent of
young Australians aged 8-17 will have been the victims of cyber-bullying, with the
number of children and young people estimated to have been affected being 463,000.1
This study observed that the prevalence of cyber-bullying has rapidly increased since
it first emerged as a behaviour, and suggested that this might be a result of the
following factors:
the increasing numbers of children and young people having access to the internet
and to smartphones and their increasing propensity to use online methods to
communicate
the perception that cyber-bullying is more difficult to detect and that bullies are
less likely to face consequences for cyber-bullying and lack awareness of the
potential effects of cyber-bullying on victims.
1
Katz, I., Keeley, M., Spears, B., Taddeo, C., Swirski, T., & Bates, S (2014). Research on youth
exposure to, and management of, cyberbullying incidents in Australia: Synthesis report (SPRC Report
16/2014). Sydney: Social Policy Research Centre, UNSW Australia.
7
Like traditional` bullying, cyber-bullying can have lasting effects on individuals and
their families, including self-esteem, mental health, depression, anxiety and suicidal
ideation.
The Online Safety Bill establishes the Children`s e-Safety Commissioner (the
Commissioner). The Commissioner will have a range of functions and powers,
including: promoting online safety for children, promoting and conducting research in
relation to online safety for children, and making grants of financial assistance in
relation to online safety for children.
In addition, the Online Safety Bill will establish a system under which persons will be
able to make complaints about cyber-bullying material that targets a particular
Australian child, and the Commissioner will be able to investigate those complaints.
After conducting such an investigation, if the material is provided on particular kinds
of services known as social media services` or relevant electronic services`, the
Commissioner will be able to require the end-user who posted the material to take all
reasonable steps to ensure the removal of the material, to refrain from posting further
cyber-bullying material for which that person is the target, and/or to apologise to the
person for posting the material. This is known as an end-user notice`. In the case of
material that is posted to a social media service, depending on the type of social media
service to which it is posted, the Commissioner will also be able to either request or
require the provider of the social media service to remove the material from its
service. This is known as a social media service notice`.
The Online Safety Bill contains provisions dealing with the enforcement of these
requirements. If a person fails to comply with a requirement under an end-user notice,
the Commissioner will be able to issue a formal warning. If the provider of a social
media service fails to comply with a requirement under a social media service notice,
they will be liable to pay a penalty of 100 penalty units. The Commissioner will
additionally be able to accept an enforceable undertaking from such a provider. In the
case of either a requirement under an end-user notice or a requirement under a social
media service notice, the Commissioner will be able to seek an injunction to ensure
compliance with the notice. In each case, enforcement is governed by the standard
provisions that are contained in the Regulatory Powers (Standard Provisions) Act
2014.
The Online Safety Bill also deals with associated administrative matters.
The Consequential Amendments Bill makes consequential amendments to a number
of other enactments to ensure smooth implementation of the Online Safety Bill.
Human rights implications
The principal human rights that the Online Safety Bill engages are:
the right to freedom of expression, which is recognised by the Convention on the
Rights of the Child (the CROC) as well as by the International Covenant on Civil
and Political Rights (the ICCPR) and the Convention on the Rights of Persons
with Disabilities (the CRPD)
the right to protection from unlawful attacks on honour and reputation, which is
recognised by the CROC
the right to privacy, which is recognised by the CROC, the ICCPR and the CRPD;
8
rights that ensure certain minimum guarantees in criminal proceedings, which is
recognised by the ICCPR, the CROC and the CRPD.
The Consequential Amendments Bill deals with a range of facilitative technical
amendments to legislation, and does not engage any human rights.
These rights, and how they are impacted by the Online Safety Bill, are discussed in
more detail below.
Freedom of expression
Rights relating to freedom of expression are recognised and protected by Articles 12
and 13 of the CROC.
Paragraph 1 of Article 12 of the CROC recognises the right of a child who is capable
of forming his or her own views to express those views freely in all matters affecting
the child. Paragraph 2 of that Article recognises the right of a child to be heard in
judicial and administrative proceedings that affect the child.
Paragraph 1 of Article 13 of the CROC recognises the right of a child to freedom of
expression. Paragraph 2 of that Article recognises that the exercise of this right may
be subject to certain restrictions. The CROC limits the types of restrictions that may
be imposed, relevantly, to such restrictions as are provided by law and are necessary
either for respect of the rights or reputations of others.
Other human rights treaties recognise similar rights, for example, Article 19 of the
ICCPR and Article 21 of the CRPD. The comments below apply equally to these
other treaties.
The guarantee of freedom of expression is considered to be fundamental to a free and
democratic society. It is recognised as extending to protecting expression that may be
regarded as offensive. Accordingly, restrictions must not be overbroad, must be
proportionate, and must be the least intrusive instrument amongst those which might
achieve their protective function.
Many provisions of the Online Safety Bill are consistent with these human rights. For
example, the Online Safety Bill permits a child who is the target of cyber-bullying to
make a complaint about cyber-bullying material, either themselves (subclause 18(1))
or through a representative (subclause 18(2)). The ordinary rules of natural justice
will apply in relation to any investigations that are carried out under the Online Safety
Bill, and hence both the child at whom the cyber-bulling material is targeted, as well
as the end-user who provided the material, will have a right to be heard in any
proceedings under or that relate to the Online Safety Bill. As a result, to that extent,
the Online Safety Bill is consistent with the rights recognised by Article 12 of the
CROC.
Further, subclause 100(1) of the Online Safety Bill provides that the Bill does not
apply to the extent (if any) that it would impinge the constitutional doctrine of implied
freedom of political communication. This ensures that the Online Safety Bill is
consistent with the rights to freedom of expression as it relates to political
communication.
However, protecting children from cyber-bullying by addressing and preventing some
of the worst instances of cyber-bullying is a policy objective that is intrinsically
restrictive of freedom of expression. Because of that, several provisions of the Online
Safety Bill are restrictive of freedom of expression.
9
In particular, the Online Safety Bill restricts the exercise of the right to freedom of
expression of an end-user who wishes to exercise this right by providing
cyber-bullying material. If the cyber-bullying material is provided on a social media
service`, the end-user`s right to freedom of expression so far as it relates to provision
of cyber-bullying material could be restricted by the provider of the social media
service being requested or required, under Part 4 of the Online Safety Bill, to remove
the material from the service. If the cyber-bullying material is posted to a social
media service` or a relevant electronic service`, the end-user`s right to freedom of
expression, so far as it relates to provision of cyber-bullying material, could be
restricted further by their being given an end-user notice` under Part 5 of the Online
Safety Bill. This notice would require the end-user to take all reasonable steps to
ensure the removal of the material, to refrain from posting cyber-bullying material
targeting that child, and/or to apologise to the person at whom the material was
targeted for posting the material.
The Online Safety Bill is, nevertheless, consistent with these human rights treaties.
To the extent the Online Safety Bill restricts the end-user`s right to freedom of
expression, the restriction is considered to be within the allowable restrictions that
may be imposed under paragraph 2 of Article 13 of the CROC. As required by this
paragraph, the restriction would be provided by law, the relevant law being the Online
Safety Bill. Also as required by this paragraph, the restriction is considered necessary
for respect of the rights or reputations of the child at whom the cyber-bullying
material is targeted.
Further, the restriction is the least intrusive one which is capable of meeting the
required policy outcome. Ensuring that this is so has been achieved in part by
providing that the definition of cyber-bullying material` that is used in the Online
Safety Bill is the narrowest definition available that is consistent with the policy
objectives behind the Bill. To be actionable, material must be more than merely
offensive or insulting. Importantly, for material to constitute cyber-bullying material
under the Online Safety Bill, it must be such that a reasonable person would conclude
that it is likely that the material was intended to have an effect on a particular
Australian child, and in addition, it must be such that a reasonable person would
conclude that the material would be likely to have the effect of seriously threatening,
seriously intimidating, seriously harassing or seriously humiliating the Australian
child at whom the material is directed.
In addition, there is scope to narrow the notion of cyber-bulling material` that can be
actioned under the Online Safety Bill further by making legislative rules for the
purposes of paragraph 5(1)(d) of the Online Safety Bill. The definition is further
narrowed by subclause 5(4) of the Online Safety Bill. This subclause has the effect
that material is taken not to be cyber-bullying material if the end-user who posted it
was in a position of authority over the child, and posted the material in the lawful
exercise of that authority, so long as the posting of the material is reasonable action
taken in a reasonable manner.
Having regard to these factors, although the Online Safety Bill restricts the right to
freedom of expression of a person who wishes to provide cyber-bullying material on
various electronic forums, it does this in the least restrictive manner that is consistent
with achieving the intended policy outcome.
10
The right to freedom of expression is further protected under the Online Safety Bill in
that decisions regarding the taking down of cyber-bulling material, which are adverse
to an end-user`s interests, can be appealed to the Administrative Appeals Tribunal,
and reviewed by that Tribunal on their merits.
Protection from unlawful attacks on honour and reputation
Paragraph 1 of Article 16 of the CROC recognises, among other things, the right of a
child not to be subjected to unlawful attacks on his or her honour and reputation.
Paragraph 2 recognises that children have the right to the protection of the law against
such interference or attacks.
Depending on its particular content, cyber-bullying material could constitute
interference with a child`s privacy, family, home or correspondence or attacks on the
child`s honour and reputation. By providing a remedy for a child who is the target of
cyber-bullying material, hence providing protection of the law against such
interferences or attacks, the Online Safety Bill advances the right recognised by
Article 16 of the CROC.
Privacy
Paragraph 1 of Article 17 of the ICCPR recognises the right to protection against
arbitrary or unlawful interference with privacy, family, home or correspondence.
Paragraph 2 of Article 17 of the ICCPR recognises the right of everyone to the
protection of the law against such interference.
Paragraph 1 of Article 16 of the CROC recognises, among other things, the right of a
child not to be subjected to arbitrary or unlawful interference with his or her privacy,
family, home or correspondence. Paragraph 2 recognises that children have the right
to the protection of the law against such interference or attacks.
Similar rights are recognised in Article 22 of the CRPD.
The Online Safety Bill engages this right to privacy. Part 9 of the Online Safety Bill
deals with disclosure of information that was obtained by the Commissioner as a
result of the performance of a function, or the exercise of a power, conferred on the
Commissioner by or under the Online Services Bill or the Broadcasting Services Act
1992 as amended by the Consequential Amendments Bill. The sort of information
dealt with by this Part can include information that relates to the child who was the
target of the cyber-bullying material, information that relates to the end-user who
posted the material, or to other persons.
The Online Safety Bill expressly authorises by law the disclosures that are permitted
by Part 9. Further, the Online Safety Bill only authorises disclosures in the particular
instances dealt with expressly in Part 9. Each of the instances in which disclosure is
authorised would, because of the nature of the authorizing provisions, be reasonable
in the circumstances, as discussed below. Accordingly, the Online Safety Bill is
consistent with the right against arbitrary interferences with privacy.
The Commissioner will be an agency` for the purposes of the Privacy Act 1988 (the
Privacy Act), and hence will be bound by the Privacy Act. Similarly, any body
corporate to which the Commissioner delegated functions or powers under clause 64
of the Online Safety Bill would also be bound by the Privacy Act.
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Clauses 77 and 78 of the Online Safety Bill authorise disclosure of information by the
Commissioner to the Minister responsible for administration of the Online Safety Bill,
and also to the Secretary of the Department and APS employees in the Department
who are authorised by the Secretary, for the purpose of advising the Minister.
Disclosure of information to the Minister, the Secretary and APS employees under
these provisions is not arbitrary, as it is a necessary aspect of the constitutional
principle of responsible government. In addition, these provisions authorise
disclosures to persons who are similarly bound by the Privacy Act.
Clause 79 of the Online Safety Bill authorises the Commissioner to disclose
information to a Royal Commission (within the meaning of the Royal Commissions
Act 1902). Royal Commissions are considered to be the highest form of inquiry into
substantive matters of public importance, and it is important that the Commissioner
not be prevented from participating in any Royal Commission that is relevant to the
Commissioner`s area of responsibility. However, to ensure that the right to privacy is
protected to the extent possible consistent with the functions and powers of the Royal
Commission, subclause 79(2) empowers the Commissioner, by writing, to impose
conditions to be complied with in relation to information disclosed under this clause.
Clause 80 of the Online Safety Bill authorises the Commissioner to disclose
information to any of a variety of authorities listed in that clause, if the Commissioner
is satisfied that the information will enable or assist the authority to perform or
exercise any of its functions or powers. The Commissioner is not the only
Commonwealth entity with responsibility for children or for matters relating to
cyber-bullying, and others, such as the National Children`s Commissioner, will have
overlapping areas of responsibility. Further, the Online Safety Bill is intended to
operate alongside a range of State and Territory laws that deal with various aspects of
cyber-bullying (clause 101 of the Online Safety Bill) and is intended not to affect the
performance of any State or Territory functions (clause 102 of the Online Safety Bill).
In addition, under the Online Safety Bill, the Commissioner is able to refer matters to
State or Territory law enforcement agencies (clause 92 of the Online Safety Bill).
Because of this, clause 80 of the Online Safety Bill is needed in order to ensure that
the Commissioner is able to disclose sufficient information to the authorities listed in
that clause to ensure that each of these authorities is able to function to its maximum
extent to ensure that the best interests of affected children are protected. To ensure
adequate protection of privacy, clause 80 contains a provision similar to
subclause 79(2), which empowers the Commissioner, by writing, to impose
conditions to be complied with in relation to information disclosed under this clause.
This may include, for example, conditions that prevent further disclosure to third
parties.
Clauses 81 and 82 are similar provisions, which provide that the Commissioner is able
to disclose information to a teacher or school principal, or to a parent or guardian, if
the Commissioner is satisfied that the information will assist in the resolution of a
complaint under the Online Safety Bill. Resolution of a complaint by teachers or
principals, or parents or guardians, has advantages over resolution through the more
formal regulatory channels available under the Online Safety Bill, particularly in the
case of instances of cyber-bullying that might be of a less serious nature. These
clauses facilitate resolution of complaints in such a manner. By facilitating resolution
of complaints outside of the more formal channels, the Online Safety Bill is also
intending to minimise the adverse impacts of its provisions on the right to freedom of
expression, discussed above. Clauses 81 and 82 contain provisions similar to
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subclause 79(2), which empower the Commissioner, by writing, to impose conditions
to be complied with in relation to information disclosed under these clauses.
Other provisions of Part 9 of the Online Safety Bill are consistent with the right to
privacy. Clause 83 permits disclosure of information relating to the affairs of a
person, so long as that person has consented to that disclosure, and clause 84
authorises the disclosure of information that is already publicly available. Clause 85
authorises the disclosure of summaries and statistics, but these are only authorised if
they are summaries of, or statistics prepared from, de-identified` information. The
term de-identified` is defined in clause 4 as information that is no longer about an
identifiable individual, or an individual who is reasonably identifiable. This ensures
that the right to privacy is preserved when information is disclosed under this
provision.
Minimum guarantees in criminal proceedings
Article 14 of the ICCPR recognises certain minimum guarantees in criminal
proceedings such as the presumption of innocence, and fair trial and hearing rights. A
penalty may be criminal` for the purposes of the ICCPR even if it is civil` under
Australian domestic law.
Similar rights are recognised in Article 40 of the CROC and Article 13 of the CRPD.
Clause 36 of the Online Safety Bill sets out a civil penalty notice in relation to non-
compliance with a social media service notice by a tier 2 social media service. It is
therefore necessary to consider whether this amounts to a criminal` penalty for the
purposes of the ICCPR.
The new civil penalty provision is directed at regulating large social media services,
which in almost all instances will be corporations or other organisational bodies,
rather than individuals. Accordingly, in general, the new civil penalty provisions will
not engage any of the human rights listed above. To the extent that it is theoretically
possible than an individual may provide a tier 2 social media service, within the
meaning of the Online Safety Bill, it is nevertheless unlikely that the civil penalty
notice would be characterised as a criminal` penalty for the purposes of the ICCPR,
given that the provision is tightly directed at regulating members of a specific group
(rather than the public). An application may be made to the Administrative Appeals
Tribunal for review of a decision by the Commissioner to issue a social media service
notice.
Conclusion
These bills are compatible with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011. To the extent to which they may engage the right
to freedom of expression, the right to protection from unlawful attacks on honour and
reputation, the right to privacy and the right to certain minimum guarantees in
criminal proceedings, any limitation is reasonable, necessary and proportionate to the
goal of enhancing online safety for children.
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REGULATION IMPACT STATEMENT
Contents
1. What is the policy problem to be solved?
2. Why is government action needed?
3. Rapid removal of cyber-bullying material from social media services
4. Response to perpetrators of cyber-bullying
5. Quality assurance of online safety programmes offered in schools
6. Consultation
7. What is the best option?
8. Implementation and evaluation
Appendix A - Social media service online safety tools and resources
Appendix B - State and territory measures
Appendix C - Overseas approaches to cyber-bullying
Appendix D - Rapid removal of cyber-bullying material from social media
services
Appendix E - Response to perpetrators of cyber-bullying
Appendix F - Quality assurance of online safety programmes offered in schools
Appendix G - Stakeholder feedback
Appendix H - Regulatory burden and cost offset estimate
1. What is the policy problem to be solved?
The internet is a daily integrated part of life for many Australian families, providing
children with a means through which they can exchange information, be entertained,
socialise, do school work and conduct research.
The internet is becoming increasingly accessible for children due to the growth in
ownership of internet connected mobile devices, with research indicating that 53 per
cent of children own or access their first internet connected device before 10 years
old;1 and around half of 14-17 year olds access the internet through mobile phones,2
1
Telstra, Safer internet and back to school survey (internal report), January 2013
2
Australian Communications and Media Authority, Like, post, share: Young Australians' experience of
social media - Quantitative research report, 2013
14
with 43 per cent of them having their own smartphone.3 While this increased
pervasiveness of devices offers many benefits, it allows children greater capacity to
access the internet under the radar` of parents, teachers and other supervising adults.
Use of social media services, that is use of online platforms designed to build social
networks or social relations among people who share interests, activities, backgrounds
or real-life connections, has also grown dramatically to overtake other forms of online
entertainment and communications used by Australian children.
In 2011, the use of social media was identified as the primary form of digital
communication between young people over 13, overtaking more traditional means
such as text messages, phone calls and email.4 While around half of young
Australians aged between 8 and 11 years use social media services, this figure
dramatically increases to around 90 per cent for 12 to 17 year olds.5 A 2014 report
indicates that 89 per cent of 12 to 17 year olds use Facebook and 65 per cent use
YouTube.6
In this new digital environment, with more children independently accessing the
internet and using social media without adult supervision, Australian children are
more exposed to online safety risks, such as cyber-bullying.
While bullying itself is not a new problem, with children spending ever more of their
time online, social media services and other forms of electronic communication have
become a new forum for bullying and this has resulted in vastly increased
opportunities and methods for bullying to occur. Cyber-bullying` can occur in a
variety of ways, through a range of digital devices and mediums, most commonly
smartphones and social media services. As many victims have pointed out, when they
are physically bullied in the playground, they at least know that they are safe for a
while when they get home. But if looking at a smartphone or a computer immediately
exposes a victim to a stream of derision, ridicule or hatred, then they are less able to
escape the bullying.
Cyber-bullying has been associated with a range of adverse implications, such as
anxiety, suicidal thoughts, depression and psychosomatic and behavioural problems.7
Research undertaken by the University of New South Wales shows a stronger
association between cyber-bullying and suicidal ideation compared to traditional`
bullying; and this is most likely due to increased exposure and humiliation, bullying
episodes lasting longer and difficulties with escaping cyber-bullying.8
3
Australian Communications and Media Authority, Communications report 2011-12, Commonwealth
of Australia, Melbourne, 2012
4
Australian Communications and Media Authority, Like, post, share: Young Australians' experience of
social media - Qualitative research report, August 2011
5
Australian Communications and Media Authority, Click and connect: Young Australians' use of
online social media - 02: Quantitative research report, Commonwealth of Australia, 2009
6
Australian Communications and Media Authority, Connected parents in the cybersafety age,
February 2014
7
Langos, Colette, Submission to the public consultation on Enhancing Online Safety for Children, 7
March 2014
8
Spears, B., Keeley, M., Bates, S. & Katz, I (2014) Research on youth exposure to, and management
of, cyberbullying incidents in Australia: Part A - Literature review on the estimated prevalence of
cyberbullying involving Australian minors (SPRC Report 9/2014) Social Policy Research Centre,
UNSW, Australia
15
Additional information provided in a case study from the National Children`s and
Youth Law Centre stated that victims in the 16-17 age group reported a broad range
of harms through cyber-bullying, including: feelings of embarrassment or shame;
refusal/reluctance to engage in society; post-traumatic stress disorder; fear for safety;
inability to continue with school; being forced to leave school and leave town; and
leaving a job.9
Some of the more extreme cases of cyber-bullying have been associated with youth
suicide. Queensland`s Commissioner for Children and Young People and Child
Guardian presented findings into cyber-bullying and youth suicide in May 2013
which demonstrated that cyber-bullying is one of many risk factors associated with
youth suicide, with victims of cyber-bullying often possessing vulnerability
characteristics known to be present in suicide deaths.
Media articles have reported the following instances where suicide deaths have been
linked to cyber-bullying: in September 2013, a Tasmanian 15-year-old schoolgirl took
her own life after being bullied, including cyber-bullied;10 a 13-year-old Sydney girl
took her own life in April 2013 after bullies relentlessly pursued her;11 a 14-year-old
Melbourne schoolgirl took her own life in January 2012 after suffering bullying
unknown to her parents;12 and in 2009, a Melbourne mother blamed her 14 year-old
daughter's suicide on the internet.13
The latest data from the Australian Bureau of Statistics indicates that suicide rates in
the 15-19 year old age group increased by 10 per cent from 2011 to 2012 and these
numbers have been increasing since 2008.14
It is difficult to know the extent to which cyber-bullying influences children and
young people who die due to intentional self-harm. Other risk factors are known to be
relevant, including mental health problems, alcohol and drug abuse. While there is no
adequate way of measuring the size of the harm from cyber-bullying in Australia, it is
clear that any cyber-bullying related suicide is not acceptable to the community.
The Australian Communications and Media Authority`s (the ACMA) research
indicates that 21 per cent of 14-15 year olds; and 16 per cent of 16-17 year olds
reported being cyber-bullied.15 Other studies indicate that 53 per cent of teens have
been exposed to cyber-bullying but with only a fraction of those children choosing to
tell their parents.16 In addition, the Department of Communications released research
9
Keeley, M., Katz, I., Bates, S. & Wong, M (2014) Research on youth exposure to, and management
of, cyberbullying incidents in Australia: Part B - Cyberbullying incidents involving Australian minors,
the nature of the incidents and how they are currently being dealt with (SPRC Report 10/2014) Social
Policy Research Centre, UNSW, Australia
10
The Telegraph, Vow to toughen cyber-bully laws as 200,000 supporters join Cassie's campaign, 12
November 2013
11
The Courier Mail, 13 child suicides in three years prompt call for action as bullying victims take
their own lives, 24 May 2013
12
The Australian, Family of suicide teen Sheniz Erkan urge parents to watch children's internet use, 13
January 2012
13
ABC, Teens death highlights cyber bullying trend, 23 July 2009
14
Australian Bureau of Statistics, Causes of Death, Australia, Catalogue No. 3303.0. Belconnen, ACT:
Commonwealth of Australia, 2012
15
Australian Communications and Media Authority, Like, post, share: Young Australians' experience
of social media - Quantitative research report, 2013
16
McAfee, Tweens, Teens and Technology report, May 2013
16
in August 2014 which indicates that 20 per cent of 8-17 year olds in Australia were
cyber-bullied in the preceding 12 months.17
While cyber-bullying is also an issue for adults, children are often less able to handle
distressing situations such as those caused by cyber-bullying. Harmful online
behaviour directed at children not only affects the parties involved, but the wider
community including parents, teachers and schools.
The social media service industry provides a range of resources and tools to support
and help keep users of their services safe (see Appendix A).
Despite this important work being undertaken by the social media service industry,
there is no data available on the numbers of complaints made by Australian children
to service providers about cyber-bullying, nor any detail available on the outcomes of
any such complaints. Social media services do not publish information that enables
assessment of how often they fail to respond appropriately to take down offending
material. However, some qualitative evidence of major social media websites failing
to respond appropriately to take down offending material has been provided via
submissions to the public consultation on Enhancing Online Safety for Children,
media reports and correspondence received by the Department of Communications.
For example, on 27 February 2014, a report by the Law Report on ABC`s Radio
National featured comments from Cassie Whitehall, the sister of a cyber-bullying
victim who took her own life in September 2013. Ms Whitehall claimed that a large
social media service failed to remove name-calling and threatening material as it did
not breach the site`s community standards.
University of New South Wales research found that most cyber-bullying incidents
reported occurred on social media. 18 Additionally, a case study from the National
Children`s and Youth Law Centre (NCYLC) stated that most cases identified either an
online platform or application as the platform through which the cyber-bullying
occurred. In some cases, the victim was cyber-bullied across multiple platforms.19
The main platforms used for cyber-bullying as identified in the NCYLC case study
were Facebook (43 per cent), Snapchat (11 per cent), Ask.fm (10 per cent), Skype (5
per cent), Tumblr (4 per cent) and Kik (3 per cent).
There are a range of legal, administrative and educational initiatives currently
available across all Australian jurisdictions to assist children, parents and schools with
online safety concerns. However, the current range of online safety initiatives are
managed and dispersed across a number of agencies. This fragmentation can be
confusing for the community in terms of accessing assistance for cyber-bullying
issues.
17
www.communications.gov.au/publications/cyber-bullying
18
Katz, I., Keeley, M., Spears, B., Taddeo, C., Swirski, T., & Bates, S (2014). Research on youth
exposure to, and management of, cyberbullying incidents in Australia: Synthesis report (SPRC Report
16/2014). Sydney: Social Policy Research Centre, UNSW Australia
19
Keeley, M., Katz, I., Bates, S., & Wong, M. (2014). Research on youth exposure to, and
management of, cyberbullying incidents in Australia: Part B Cyberbullying incidents involving
Australian minors, the nature of the incidents and how they are currently being dealt with (SPRC
Report 10/2014). Sydney: Social Policy Research Centre, UNSW Australia
17
A survey conducted by GfK Australia among young people aged 10-17 to find out
how much they knew about the laws which apply to cyber-bullying - and what the
consequences might be - indicated that there is a great deal of uncertainty and
confusion about existing criminal offences related to cyber-bullying. The results
suggested that while young people had an appreciation that cyber-bullying could be a
criminal offence, there was no active on-going awareness or consideration of this
issue nor a clear view of what might constitute a criminal case of cyber-bullying.20
State and territory governments are implementing a range of measures to prevent and
manage cyber-bullying incidents in schools (refer to Appendix B).
Schools and local police
Research recently published by the Department of Communications found that 87 per
cent of secondary schools reported at least one instance of cyber-bullying in 2013, as
did just under 60 per cent of primary schools.21
Schools are working hard to respond to complaints about cyber-bullying, with over 83
per cent of schools having a system or policy in place for managing cyber-bullying
incidents.22 In their responses, schools typically said they had a multi-faceted
approach including contacting parents, counselling of all involved parties, warning
notices, class discussions, formal punishments according to school policy, and in
extreme cases`, referral to police.
Cases referred to police were more likely to involve sexting resulting from coercion,
intimidation, blackmail, sharing of images or video which was unauthorised by a
victim, hate websites or social media pages, and anonymous cyber-bullying.
Adding to the gap between the pervasiveness of cyber-bullying and difficulties in
addressing the issue, the research found that police would typically only act on more
serious cases23 - preferring the less serious cases to be dealt with by schools or other
agencies.24 Research indicates that very few cases of cyber-bullying involving
Australian minors are prosecuted. There was a preference for measures including
counselling and restorative justice as the first means of redress before treating a
cyber-bullying matter as a criminal offence.
These results indicate a gap between the extreme cases` of cyber-bullying that are
unable to be dealt with adequately or effectively by schools and which are referred by
schools to police, and those cases that are accepted for investigation by police because
they reach a criminal threshold.
20
Tan, B., and Pedic, F (2014). Youth awareness of cyber-bullying as a criminal offence. GfK
Australia Pty Ltd
21
Estimates of cyber-bullying incidents dealt with by Australian schools (2014). IRIS Research
22
Estimates of cyber-bullying incidents dealt with by Australian schools (2014). IRIS Research
23
Katz, I., Keeley, M., Spears, B., Taddeo, C., Swirski, T., & Bates, S (2014). Research on youth
exposure to, and management of, cyberbullying incidents in Australia: Synthesis report (SPRC Report
16/2014). Sydney: Social Policy Research Centre, UNSW Australia
24 24
Keeley, M., Katz, I., Bates, S., & Wong, M. (2014). Research on youth exposure to, and
management of, cyberbullying incidents in Australia: Part B Cyberbullying incidents involving
Australian minors, the nature of the incidents and how they are currently being dealt with (SPRC
Report 10/2014). Sydney: Social Policy Research Centre, UNSW Australia
18
There is a great deal of uncertainty and confusion about criminal offences related to
cyber-bullying and while 72 per cent of respondents to the UNSW study on youth
exposure to, and management of, cyberbullying incidents in Australia considered that
police would be able to do something about cyber-bullying only 36 per cent said they
would report cyber-bullying to police.25
While there is not any specific information on the number of instances of schools
failing to respond appropriately to cyber-bullying, some schools reported taking no
action on cyber-bullying reports because the issue was deemed outside of the school`s
responsibilities; the incident did not occur during school hours; or the school chose to
take no action to avoid inflaming the situation.26
The only avenues for redress in such situations are raising the issue with the social
media service (where the cyber-bullying takes place on such a platform), or referring
matters to police.
In relation to complaints made to social media services, social media services advise
that they invest heavily in reporting tools and encourage their users to report any
abuse, including bullying and harassment, directly to them. The social media services
advise that they receive many such complaints and strive to investigate and take
appropriate action promptly. However research indicates that such services have not
been sufficiently responsive to requests to remove cyber-bullying material.27 This has
been reinforced by submissions to the public consultation process as well as periodic
reports in the media.
While a precise number of instances where major social networking sites have failed
to respond appropriately, consistent with their own terms and conditions, to take down
offending material is not available, research undertaken by a research consortium led
by the University of New South Wales found that fewer than half of stakeholders
reporting or facilitating reports of cyber-bullying to social media services were
satisfied with the outcome: Responses from social media services that frustrated
participants in this research included that material did not violate the community
standards and/or that the onus was on the victim to block the bully (rather than the
social media service blocking the bully).28
While noting that some of the larger, more widely used social media services have
significantly improved their complaints handling processes in recent years, Australian
children (and their parents) currently have no recourse in instances where they
disagree with how their complaints are handled by social media services.
25
Katz, I., Keeley, M., Spears, B., Taddeo, C., Swirski, T., & Bates, S (2014). Research on youth
exposure to, and management of, cyberbullying incidents in Australia: Synthesis report (SPRC Report
16/2014). Sydney: Social Policy Research Centre, UNSW Australia
26
http://www.communications.gov.au/publications/publications/cyber-bullying
27
http://www.communications.gov.au/__data/assets/pdf_file/0005/242537/Cyberbullying_Research_R
eport_-_Part_B.pdf
28
Katz, I., Keeley, M., Spears, B., Taddeo, C., Swirski, T., & Bates, S (2014). Research on youth
exposure to, and management of, cyberbullying incidents in Australia: Synthesis report (SPRC Report
16/2014). Sydney: Social Policy Research Centre, UNSW Australia
19
In relation to complaints made to police, the University of New South Wales research
found that the most significant barriers to police and other agencies dealing with
cyber-bullying are: 29
the lack of accountability of social media and other service providers who are
reluctant and/or slow to take down cyber-bullying material; and
that many service providers are based overseas.
Further, local police have limited resources or in some instances a policing response
may not be the most appropriate or most effective way of addressing the issue,
particularly issues that do not warrant a criminal justice response.
In considering options for addressing these issues, the research found that respondents
clearly favoured the creation of an e-Safety Commissioner to oversee rapid take-
down and act where a social network site or a cyberbully have not taken down
cyberbullying content on request.30
It is appropriate that schools and local authorities continue to handle complaints about
cyber-bullying as appropriate. The Commissioner would support and assist the
ongoing activities of the schools and police in the states and territories, in addition to
handling complaints that are more appropriate to be considered by the Commissioner.
Education programs
Many schools commission external providers to deliver programmes about online
safety in their school. However, these programmes are not required to meet standards
of quality or specifically cover cyber-bullying content. In order for educational
programmes about online safety to be effective, online safety messages must be
consistent and tailored to the needs of the audience.
The ACMA`s Like, Post, Share Report states that In relation to guest speakers,
almost all children and young people reported having had someone come to their
schools to either talk to the whole school, year group or class. Children and young
people perceptions of these talks differed largely depending on perceptions of the
speaker themselves and the content that was delivered.` Speakers who were able to
provide children and young people with new information, or present it in a way they
had not seen before, were held as the most interesting and influential.31
The Department conducted a desktop review and identified over 30 different online
safety programmes being delivered in schools. These programmes were found to
cover a variety of online safety and security issues including cyber-bullying, online
grooming and privacy. This desktop review identified a range of delivery methods
including face to face presentations, video conferencing and online/desktop software.
29
Katz, I., Keeley, M., Spears, B., Taddeo, C., Swirski, T., & Bates, S (2014). Research on youth
exposure to, and management of, cyberbullying incidents in Australia: Synthesis report (SPRC Report
16/2014). Sydney: Social Policy Research Centre, UNSW Australia
30
Katz, I., Keeley, M., Spears, B., Taddeo, C., Swirski, T., & Bates, S (2014). Research on youth
exposure to, and management of, cyberbullying incidents in Australia: Synthesis report (SPRC Report
16/2014). Sydney: Social Policy Research Centre, UNSW Australia
31
Australian Communications and Media Authority, Like, post, share: Young Australians' experience
of social media - Qualitative research report, August 2011
20
Currently, state and territory education authorities do not have uniform requirements
regarding the quality of programmes about online safety that are delivered in schools
by third-party providers. There is information asymmetry in the market as principals
and teachers have little guidance regarding the quality of available programmes about
online safety, which can make it difficult for decision makers to assess the
appropriateness of programmes to be offered within schools.
There is no information available on the extent to which schools provide education on
cyber-bullying that is not considered best practice.
An annual global survey of teachers` and students` internet use by AVG
Technologies, released in July 2014, shows parents expect teachers to educate their
children about internet safety. However, the survey`s results show there is a
discrepancy between parents` expectations regarding online safety education and
actual time spent in class covering the topic.32
2. Why is government action needed?
The policy to Enhance Online Safety for Children is an election commitment.33 The
Government has promised to do more to protect children online.
The evidence described above demonstrates that cyber-bullying has a high prevalence
amongst young people; social media services do not always adequately respond to
complaints about cyber-bullying material; while schools are working hard to deal with
cyber-bullying, they are unable or unwilling to deal with more complex or serious
matters; and existing criminal laws are confusing and inadequate in dealing with non-
criminal instances of cyber-bullying that are too complex to be adequately resolved by
schools.
Even in the presence of existing penalties or other disincentives put in place by
schools, governments, or others in positions of authority, cyber-bullying will still
occur. Social media service providers tend to have in place policies and tools to assist
users in dealing with cyber-bullying material, however when it comes to dealing with
these complaints, the onus tends to be put on the victim to block the bully, and/or the
victim has no recourse in instances where they disagree with how their complaints are
handled by social media services. In addition, not all cyber-bullying occurs on social
media.
There is a clear gap between the issues that are able to be adequately resolved by
schools (eg those involving students within a school, or between related schools), and
those that are of a criminal nature that can be dealt with by police. Such complaints
would include ones that schools may consider to be outside their responsibilities (eg
bullying occurring to one of their students by a person not at the same school),
instances where the incident did not occur during school hours; and instances where
the school chooses to take no action to avoid inflaming the situation.
There are existing programs in place which deliver online safety education to schools,
including in relation to cyber-bullying. However not all schools, particularly those in
indigenous communities or lower socio-economic areas, have the ability to pay for
and offer online safety programs to their students. For these schools access to free
32
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11287621
33
The Coalition's Policy to Enhance Online Safety for Children, September 2013
21
programs such as ThinkUknow and the Australian Federal Police`s HTCO Portfolio
Cyber Safety Presentations are accessible.
In the absence of these issues being adequately addressed by the market or existing
measures, there is a need for the Government to step in to address them. Many of the
submissions to the Australian Government`s public consultation supported the
introduction of new measures to improve online safety for children in Australia.34 The
Government has committed to establishing the Office of the Children`s e-Safety
Commissioner (the Commissioner) in the 2014-15 Budget. The Commissioner will
take a national leadership role in improving online safety for Australian children by
improving the coordination of messages to Australian children and those charged with
their welfare and facilitating better engagement between government, families,
industry and groups responsible for the wellbeing of children.
The goal of this policy is to reduce the socially undesirable behaviour of cyber-
bullying of children. The policy seeks to achieve the following outcomes:
the rapid removal of cyber-bullying material from large social media services;
a more effective response to cyber-bullying complaints that cannot be managed at
the school level but may not warrant a criminal justice response; and
quality assurance of online safety programmes offered in schools.
The Commissioner will be responsible for achieving the above listed outcomes and
implementing a range of other measures to protect Australian children online
including administering a funding programme for the delivery of programmes about
online safety in schools.
The lasting impacts of cyber-bullying behaviour can be significant and have
long-term costs for both the individual and the wider community. The Government,
alongside parents, teachers, police and social media services, has a role in ensuring
children are protected online. In addition to action taken by the Government, schools
will continue to play a key role in delivering online safety programs to students and in
addressing the majority of cyber-bullying complaints relating to their students, and
police will have an ongoing role in relation to criminal matters.
In considering the issues below, readers should note that the Government has engaged
in extensive consultation with stakeholders on options to Enhance Online Safety for
Children.
While in Opposition, the Coalition established the Online Safety Working Group
which was chaired by the now Parliamentary Secretary to the Minister for
Communications, the Hon Paul Fletcher MP. The working group consulted widely
with industry, the community, parents and children -- to understand the issues in
keeping children safe online, and to develop policy responses. The Government`s
election policy to Enhance Online Safety for Children drew very heavily on the work
and findings of this group.
34
Public consultation was undertaken between 22 January and 7 March 2014. The Australian
Government released a discussion paper entitled Enhancing Online Safety for Children to seek views
on key online safety measures
22
Since coming to Government, the Government has built an even more comprehensive
evidence base, commissioning three major pieces of research on cyber-bullying from
research experts. The Government also consulted widely through its public
consultation on Enhancing Online Safety for Children in early 2014.
The Government has committed to introduce legislation into Parliament before the
end of the 2014. The Government has worked closely with key stakeholders including
community groups, service providers, industry associations, business and government
in the development of the legislation. The options below should be considered in this
context.
3. Rapid removal of cyber-bullying material from social media services
Two policy options are considered, including:
a. status quo (non-regulatory); and
b. an effective complaints system, backed by legislation, to get harmful material
down fast from large social media services:
i. a regulatory scheme for removal of cyber-bullying material which
applies to all large sites, with penalties for non-compliance; or
ii. a two-tiered scheme, backed by legislation, for the rapid removal of
cyber-bullying material from social media services.
An analysis of these options is at Appendix D. All analyses are compared relative to
the status quo and to each other, rather than in absolute terms.
Of these options, (b)(ii) is considered to have the highest net benefit on the basis that
it would produce a greater reduction in the amount of harm resulting from cyber-
bullying than option (a), and commensurate reduction in harm when compared with
option (b)(i), but would have significantly lower costs than option (b)(i).
This is summarised in the table below. The preferred option is highlighted.
Option Harm from Harm from Harm from Regulatory
number of exposure to further cost
general material* behaviours*
instances*
Status quo 5 5 5 Low
Regulatory 5 8 6 High
scheme
applying to all
sites
Two-tier 5 8 6 Low/medium
scheme
*Harm - (1 = significant increase; 5 = no change; 10 = significant decrease/no more
instances, exposure, or further behaviours).
23
4. Response to perpetrators of cyber-bullying
Four policy options are considered, including:
a. status quo (non-regulatory);
b. implement education and awareness raising measures to better explain the
application of existing offences;
c. create a separate cyber-bullying criminal offence covering conduct where the
victim is a minor, with a lesser maximum penalty; and
d. create a separate cyber-bullying notice regime to deal with cyber-bullying
behaviour.
An analysis of these options is at Appendix E. All analyses are compared relative to
the status quo and to each other, rather than in absolute terms.
Of these options, (d) is considered to have the highest net benefit on the basis that it
would have a commensurate level of regulatory costs to the other three options, but
would produce equal or greater benefits in terms of reducing harm from cyber-
bullying material in comparison to the other options. Option (b) is also considered to
be favourable on the basis that it would greatly reduce the harm caused from general
instances of cyber-bullying, while having a very low regulatory impact.
This is summarised in the table below. The preferred options are highlighted.
Option Harm from Harm from Harm from Regulatory
number of exposure to further cost
general material* behaviours*
instances*
Status quo 5 5 5 Low
Education and 7 5 7 Low
awareness raising
measures
New 6 5 9 Low
cyber-bullying
offence
New 6 8 9 Low
cyber-bullying
notice regime
*Harm - (1 = significant increase; 5 = no change; 10 = significant decrease/no more
instances, exposure, or further behaviours).
5. Quality assurance of online safety programmes offered in schools
Two policy options are considered, including:
a. status quo (non-regulatory); and
b. voluntary certification process.
24
An analysis of these options is at Appendix F. The two options are compared relative
to each other, rather than in absolute terms.
Of these options, b is considered to have the highest net benefit on the basis that,
while it would involve slightly higher costs for participants than the status quo, such
costs would be voluntary, and the certification of providers of program would lead to
a higher reduction in harm from cyber-bullying material in comparison to option a.
This is summarised in the table below. The preferred option is highlighted.
Option Harm from Harm from Harm from Regulatory
number of exposure to further cost
general material* behaviours*
instances*
Status quo 5 5 5 Low
Voluntary 7 7 7 Low/medium
certification
*Harm - (1 = significant increase; 5 = no change; 10 = significant decrease/no more
instances, exposure, or further behaviours).
6. Consultation
Full public consultation was undertaken between 22 January and 7 March 2014. The
Australian Government released a discussion paper entitled Enhancing Online Safety
for Children to seek views on implementing the key measures to improve the online
safety of Australian children, including: establishing a Children`s e-Safety
Commissioner; developing an effective complaints system, backed by legislation, to
get harmful material down fast from large social media services; and examining
existing Commonwealth legislation to determine whether to create a new, simplified
cyber-bullying offence.
Over 80 submissions were received from a range of stakeholders, including
community organisations, industry, education bodies, government bodies, legal
representatives and/or bodies, academics and individuals. Non-confidential
submissions are available on the Department of Communications` website.
In addition, the Government held targeted consultation with industry and members of
the OSCWG. The OSCWG was formed to enable detailed consultation on the
development of online safety policies and has members drawn from community
groups, internet service providers, industry associations, business and government.
A full list of OSCWG members is available at:
http://www.communications.gov.au/__data/assets/pdf_file/0011/204050/Online-
Safety-Consultative-Working-Group-Member-List-FINAL.pdf
Consultation with the Department of Education and the ACMA has been undertaken
on alignment to the National Safe Schools Framework and on approaches to
implementing the voluntary certification process.
In addition, targeted consultation with education authorities, industry and members of
the OSCWG will be undertaken in late 2014 / early 2015 to further assess the impact
of the voluntary certification process on online safety programme providers and to
25
align the certification criteria and guidelines to state and territory education
requirements.
Further targeted consultation on the Regulatory Impact Statement has occurred with
the OSCWG. A summary of the feedback received from this consultation is outlined
at Appendix G.
7. What is the best option?
Following public and targeted consultation, a combination of regulatory and non-
regulatory measures to address cyber-bullying is proposed.
The proposed combination of measures is set out below:
Government Removal of Response to Quality assurance of
Actions cyber-bullying perpetrators of online safety
material from social cyber-bullying programmes
media
Options a. Status quo a. Status quo a. Status Quo
b. Effective b. Education and b. Voluntary
complaints system, awareness certification
backed by raising process
legislation
i. Regulatory c. Separate
scheme cyber-bullying
applying to all offence
participating
sites
ii. Two-tier d. Separate
scheme cyber-bullying
notice regime
By taking a holistic approach to enhancing online safety for children, there is a higher
likelihood of successfully reducing the occurrence of cyber-bullying and the harm
suffered by children from this behaviour. The proposed approach aims to address
issues around both the prevalence of cyber-bullying (through education and awareness
raising) and its harmful effects (through education and awareness raising, and through
the provision of additional remedies to address instances of cyber-bullying).
By establishing the two-tiered scheme in legislation, it will help to build the
confidence and trust of Australian families in how social media services deal with
their concerns.
The voluntary certification process will aim to provide quality assurance of online
safety education provided in schools and enable schools to identify programmes and
providers that are likely to be the most appropriate to meet the needs of their students
and school community.
There is a risk that online safety programme providers may choose not to participate
in the voluntary certification process or that schools are not aware of its operation. To
26
mitigate this risk, the proposed option will involve consultation with industry, and the
Commissioner will undertake information campaigns targeted at education authorities
and schools to communicate the benefits of engaging certified online safety
programmes. Linking the $7.5 million funding programme with the voluntary
certification process will also encourage providers to certify their programmes.
Conducting the voluntary certification process may affect the ability of providers to
compete in the market.
The regulatory burden and cost offset estimate for this package of options is at
Appendix H.
It is difficult to monetise the benefits of reducing the consequences of cyber-bullying,
whether those benefits are in the form of reduced suffering for the victim, a potential
reduction in the loss of life due to self-harm or the long-term effects on family and
friends, but by any measure it is self-evident that these benefits constitute a net
positive benefit when compared with the average annual regulatory costs at
Appendix H.
8. Implementation and evaluation
Legislation to establish the Commissioner and associated functions will be introduced
in 2014. The Commissioner`s Office will formally commence in mid-2015. The
Commissioner will be responsible for implementing and overseeing the proposed
measures.
The new arrangements would be subject to a formal evaluation from 2018 (i.e. three
years after the arrangements commence). The Commissioner would monitor
implementation and report on this to the Minister for Communications. An
implementation plan has been developed and will be regularly reviewed and updated
as needed.
8.1 Implementation risks for rapid removal of cyber-bullying material from
social media services
There is potential difficulty in enforcing compliance with the legislative arrangements
against large social media services which do not have an Australian presence. The
design of the two-tiered scheme should reduce the circumstances in which
enforcement will become an issue. In addition, a complainant also has other avenues,
such as the cyber-bullying notice regime to seek redress for cyber-bullying.
The Minister will not be able to declare smaller social media services under Tier 2
(unless they volunteer to participate under Tier 2) and hence, these sites may not be
subject to legally binding notices and penalties. This may result in these smaller sites
not responding to requests from the Commissioner to remove cyber-bullying material.
However, the Commissioner will be expected to build strong working relationships
with social media services used by children in Australia, whether formally subject to
the legislation or not. The Commissioner will make informal requests to the sites not
subject to Tier 2 regulation to remove cyber-bullying material - and will also
highlight to them the Australian regulatory framework and the potential of the
relevant social media service becoming subject to formal regulation in Australia if it
becomes bigger.
27
8.2 Implementation risks for response to perpetrators of cyber-bullying
An implementation risk of the cyber-bullying notice regime is that the Commissioner
will receive a higher number of complaints than estimated. If this occurred, the
Commissioner may be overburdened by his or her workload and this could result in an
additional risk that complaints may not be responded to in a timely and effective
manner. To mitigate this risk, the Commissioner would focus on complaints that
cannot be handled more appropriately by a school or the police and where appropriate
refer complaints to relevant organisations. To reduce duplication and minimise the
number of complaints handled by the Commissioner, the Commissioner will work
with schools and police to establish processes to work together, undertake an
information campaign to outline the purpose and role of the Commissioner and
develop guidelines for handling reports of cyber-bullying.
There is a risk that the Commissioner may not be able to identify perpetrators of
cyber-bullying and may therefore not be able to send a notice. This may occur in
some cases despite the cooperation of social media services or other service providers.
However, while the Commissioner may not be able to identify the perpetrator in all
instances, notices will be useful tools for the Commissioner as they will be able to be
issued in instances where the perpetrator can be identified.
8.3 Implementation risks for quality assurance of online safety programmes
offered in schools
An implementation risk of the voluntary certification process is that the
Commissioner will receive a higher number of applications than originally estimated.
If this occurs, the Commissioner may not be able to assess applications in a timely
and effective manner. To mitigate this risk, the Commissioner will work closely with
online safety programme providers to manage stakeholder expectations in the event of
high numbers of applications.
The Commissioner will also develop strong working relationships with industry to
encourage participation in the voluntary certification process.
28
Appendix A
Existing online safety tools and resources provided by social media service
providers
The social media service industry provides a range of resources and tools to support
and help keep users of their services safe.
Social media service providers offer their services under terms of use that govern the
behaviour of users of the services. For example:
Yahoo!7`s Terms of Service35
Facebook`s Statement of Rights and Responsibilities36
Microsoft`s Terms of Use37
Twitter`s Terms of Service38
Google Terms of Service39
In addition, many of the services explain the standards that people must adhere to
when using the services. For example, Facebook provides its Community Standards40,
YouTube provides the Community Guidelines41 and Twitter publishes The Twitter
Rules.42
To promote compliance with these policies, social media service providers offer tools
that leverage the communities active on the sites, to flag or report instances of content
or behaviour that violates these services` terms of use or community standards. For
example:
Facebook provides report links throughout its website43
Yahoo!7 provides tools to assist in reporting inappropriate or harmful behaviour
such as Report Abuse flags and Abuse Help Forms. The Report Abuse flags
are tools that enable a user to notify the customer care teams of a complaint about
specific content.
Twitter provides a How to Report an Abusive User function44
YouTube provides a flag system that enables users to report any videos which
they consider to be inappropriate45
Microsoft allows users to report abuse46
35
http://info.yahoo.com/legal/au/yahoo/utos/en-au/
36
https://www.facebook.com/legal/terms
37
http://www.microsoft.com/info/au-en/cpyright.mspx
38
https://twitter.com/tos
39
http://www.google.com.au/intl/en/policies/terms/regional.html
40
https://www.facebook.com/communitystandards
41
http://www.youtube.com/t/community_guidelines
42
http://www.twitter.com/rules
43
https://www.facebook.com/help/reportlinks
44
https://support.twitter.com/forms/abusiveuser
45
http://support.google.com/youtube/bin/answer.py?hl=en&answer=118747
46
https://support.microsoft.com/contactus/emailcontact.aspx?scid=sw;en;1671&ws=reportabuse
29
Members of the Australian Interactive Media Industry Association`s (AIMIA) Cyber-
safety sub-group (cyber-safety sub-group), which includes Facebook, Google,
Twitter, Microsoft, eBay and Yahoo!7 have advised that they maintain extensive
review teams that operate continuously to take appropriate action with reports made in
relation to their content or conduct on their services.47 Complaints made to these
services are triaged, with complaints dealing with the most serious cases handled first.
AIMIA cyber-safety sub-group members advise that they regularly update and
improve their reporting tools. For example, Facebook last year rolled out a new tool to
assist with greater transparency in identifying the status of a report made via its
Support Dashboard.48
Youtube`s Safety Mode` is a tool that operates at the family level and empowers
parents to determine what content they wish their children to be exposed to. By
switching on this tool, users have the option of choosing not to see mature content that
they or their children may find offensive, even if the content does not breach
YouTube`s Community Guidelines. Further, YouTube videos that have been age
restricted will not show up in video search, related videos, playlists, shows and
movies.
In a similar manner, Microsoft provides its users with its Family Safety Centre`.49
Yahoo!7 incorporates safety and privacy features into all its products, including
privacy preferences, blocking capabilities, abuse flagging and product specific FAQ
safety guides50 and general online safety tips.51
AIMIA cyber-safety sub-group members also provide help and educational
information through specifically designed parts of their sites in order to promote
awareness of their online safety policies. For example:
The Yahoo!7 specialised safety website, which contains tools, tips, hints from
experts and other information aimed at keeping children and internet users safe
online.52
The Google Good to Know site53 and Safety Centre54, which contains safety tips
from experts and information about Google`s online safety tools.
eBay`s Policies Centre55 which includes information on phishing, protecting
personal information and identity theft schemes56 and Trust and Safety
Tutorials.57
47
http://www.communications.gov.au/__data/assets/pdf_file/0011/220223/Australian_Interactive_Med
ia_Industry_Association.pdf
48
https://www.facebook.com/notes/facebook-safety/details-on-socialreporting/196124227075034 and
https://www.facebook.com/notes/facebook-safety/improvedtools-to-support-your-facebook-
experience/473126442708143
49
http://www.microsoft.com/security/family-safety/default.aspx#Overview.
50
https://au.safely.yahoo.com/yahoo-products/
51
https://au.safely.yahoo.com/faq/
52
http://au.safely.yahoo.com
53
http://www.google.com.au/goodtoknow/
54
http://www.google.com.au/safetycenter/
55
http://pages.ebay.com.au/help/policies/overview.html
56
http://pages.ebay.com.au/help/account/protecting.html
30
The YouTube localised Safety Centre58, which contains content from local
partners, including the Australian Communications and Media Authority, the
Australian Federal Police, Kids Helpline and the Inspire Foundation on topics
that include teen safety, and harassment and bullying.
The Facebook Family Safety Centre, which contains information for parents59
teachers60, and teens61 on online safety.
The Twitter Safety Centre62, which includes resources and information for
parents, teachers, and young people, as well as Twitter`s policies, guidelines and
best practices.
Microsoft`s Safety Centre63 which gives consumers the ability to put in place
family safety settings for Microsoft products64 and provides a range of different
resources and information about online security and safety.
In addition to these tools and resources, individual companies undertake their own
education campaigns through initiatives such as Facebook`s Be Bold Stop Bullying
campaign65, Google`s Good to Know66 initiative, eBay and PayPal`s Surf between the
Flags67 initiative and Microsoft`s Think U Know program with the Australian Federal
Police.
All members also participate in the various awareness weeks organised by
Government, such as Privacy Awareness Week, Safer Internet Day, Stay Smart
Online Week and the National Day of Action against Bullying and Violence.
The AIMIA Digital Policy Group launched in December 2013 (and updated in July
2014) the Keeping Australian Safe Online68 resource which outlines the resources
provided by eBay, Yahoo!7, Google, Facebook, Microsoft and Twitter.
Members of the social media service industry also collaborate with non-profit
organisations and associations including The National Association for Prevention of
Child Abuse and Neglect (NAPCAN), Inspire Foundation, The Alannah and Madeline
Foundation, headspace, Kids Helpline, Bravehearts and Netsafe to receive expert
advice about current trends and issues with the safety of young people and to ensure
that these organisations have access to relevant information about the safety policies
and tools that are available to users of social media services.
57
http://pages.ebay.com.au/help/policies/tns-tutorials.html
58
http://support.google.com/youtube/bin/request.py?contact_type=abuse
59
http://www.facebook.com/safety/groups/parents/
60
http://www.facebook.com/safety/groups/teachers/
61
http://www.facebook.com/safety/groups/teens/
62
https://support.twitter.com/groups/57-safety-security
63
www.microsoft.com/safety
64
http://www.microsoft.com/security/family-safety/default.aspx#Products
65
https://www.facebook.com/beboldstopbullyingau
66
http://www.amf.org.au/Assets/Files/MEDIA%20RELEASE%20-%20Good%20to%20Know%20Ca
mpaign%20helping%20Australians%20stay%20safe%20online.pdf
67
http://www.canberra.edu.au/cis/tour/
68
http://cybersmart.gov.au/cybersmart-
citizens/~/media/Cybersmart/Digital%20Citizens/Keeping%20Australians%20Safe%20Online%20Pub
lic%20Spreads%20July%202014.pdf
31
In January 2013, Yahoo!7, Facebook, Microsoft and Google voluntarily signed the
Co-operative Arrangements for Complaint Handling on Social Networking Sites (the
Protocol). Yahoo!769, Facebook70, Microsoft71 and Google72 have made self-
declarations as to how they comply with the Protocol.
The Protocol provides for a designated and locally based contact person at
participating social networking sites that the Australian Government can contact in
relation to content issues. The Protocol also provides that providers will meet with
government officials on a bilateral basis every six months to discuss trends and
emerging issues.
These social media service providers meet regularly with the Government and other
key online safety stakeholders to discuss trends and emerging issues through the
Government`s Online Safety Consultative Working Group (OSCWG). This includes
discussions in relation to the Government`s policy to Enhance Online Safety for
Children.
69
http://www.communications.gov.au/__data/assets/pdf_file/0019/161083/Yahoo!.pdf
70
http://www.communications.gov.au/__data/assets/pdf_file/0004/161077/Facebook.pdf
71
http://www.communications.gov.au/__data/assets/pdf_file/0017/161081/Microsoft.pdf
72
http://www.communications.gov.au/__data/assets/pdf_file/0006/161079/Google_YouTube.pd
f
32
Appendix B
State and territory measures to prevent and manage cyber-bullying
State and territory governments are implementing a range of measures to prevent and
manage cyber-bullying incidents in schools. Along with the measures below, the
Australian Federal Police are engaged in collaborative activities with industry, the
Government and sporting groups. Schools are able to access free programs through
the HTCO Portfolio Cyber Safety Presentations, including ThinkUknow and a range
of presentations about:
internet safety (including ThinkUknow) presented to parents, carers and teachers
aimed to raise awareness of internet safety and security issues relevant to young
people; and
cybersafety, which is delivered to primary and secondary students and
encourages awareness of online safety.73
Victoria
In March 2013, launched the Bully Stoppers programme which aims to help
students, parents, teachers and principals to ensure schools are safe and
supportive places where bullying is taken seriously and not ignored. Bully
Stoppers is an online toolkit which provides interactive printable tools and
resources. Interactive learning modules encourage students to discuss bullying,
cyber-bullying and responsible social media use. Advice sheets are also available
to help deal with face-to-face and cyber-bullying.
The Bully Stoppers programme includes two mobile apps to promote messages
and teach secondary students that there is no such thing as safe sexting.
Offers other resources on their website for preventing, managing and handling
online safety incidents such as cyber bullying.74
Partnered with the Alannah and Madeline Foundation to provide funding through
to the middle of 2015, so all Victorian government schools and selected non-
government schools can participate in the eSmart Schools online safety
framework.
Queensland
Provides advice and support to schools on online safety issues through their
website.75
Developed tailored programmes to help students understand what they should and
shouldn`t do online. 76
Partnered with the Alannah and Madeline Foundation to offer the eSmart Schools
online safety framework to Queensland state schools.
73
http://www.afp.gov.au/jobs/current-vacancies/high-tech-crime-operations.aspx
74
www.education.vic.gov.au/school/principals/health/pages/lol.aspx
75
http://education.qld.gov.au/studentservices/behaviour/qsaav/cybersafety.html
76
www.qld.gov.au/education/schools/health/cybersafety/
33
Western Australia
Provides links to resources, information and cyber-bullying webinars on the safe
use of technology communications in the school, community and home.77
New South Wales
Provides the Digital Citizenship Resource which includes a variety of games and
activities to educate students on how to be responsible digital citizens.78
Provides advice and tips for parents on a wide range of issues affecting children
and youth at the Schools A to Z website. 79
South Australia
Provides advice on dealing with online safety issues through their website.80
Developed resources about implementing online safety into the curriculum and
links to third party resources such as the Cybersmart website.
Offers a variety of policies and procedures for schools to take when an online
safety incident has occurred.
In December 2013, provided the Carly Ryan Foundation a $50,000 grant to
develop a mobile phone app that will allow young people to communicate
instantly with their carers and loved ones anytime they feel threatened, unsafe or
intimidated.
Australian Capital Territory
The Parent Link Website provides information about cyber safety issues, tips on
how to stay safe online and links to various online safety resources.81
Northern Territory
Provides advice for schools and families about online safety issues on their
website.82
77
http://det.wa.edu.au/studentsupport/behaviourandwellbeing/detcms/navigation/safe-and-supportive-
schools/cyber-safety-websites/?oid=Category-id-13788524
78
www.digitalcitizenship.nsw.edu.au/index.htm
79
www.schoolatoz.nsw.edu.au/zh/technology
80
www.decd.sa.gov.au/speced2/pages/cybersafety/36219/?reFlag=1
81
www.parentlink.act.gov.au/parenting-resources/parenting-guides/adult-issues/cyber-safety
82
www.education.nt.gov.au/teachers-educators/students-learning/safe-schools-nt/cybersafety
34
Appendix C
Overseas approaches to cyber-bullying
The Department commissioned research earlier this year into youth exposure to, and
management of, cyber-bullying incidents in Australia. The research contained an
evidence-based assessment of deterrents to youth cyber-bullying and part of this
assessment examined what is being done in the wider international community.83
This research suggests that there is no standard approach that is common across each
of the jurisdictions which were examined. Variations occur with regard to age of
criminal responsibility, the legal response to bullying in general as opposed to specific
mention of cyber-bullying, the responsibility and legal requirements for schools, and
whether federal or state laws are used to address bullying and cyber-bullying (where
applicable). A brief summary for each of the jurisdictions examined as part of this
research follows.
US and Canada
All laws relating to cyber-bullying in the US are at the state level. Of the 49 states that
have bullying laws:
19 include cyber-bullying specifically;
4 states have proposed cyber-bullying laws;
48 states included some form of harassment; and
14 states had criminal sanctions for bullying or cyber-bullying, with 5 states
having criminal sanctions proposed.
No evaluations have been conducted on the impact of these laws. However,
legislation without support for education campaigns and resources in schools was
found to be counterproductive in the US.
Whilst there are currently no bullying laws at the federal level, a Bill was introduced
into US Congress in 2009, the Megan Meier Cyberbullying Prevention Act, which is
still under review.
In Canada, cyber-bullying can be dealt with under civil and criminal law depending
upon the situation. Several provinces and territories have laws specifically dealing
with online and offline bullying. Amendments to the Education Acts have been used
rather than criminal law provisions.
European Union
There is no European Union legal framework regarding violence in schools; however,
in several Member States there are laws that may be used to deal with specific forms
of bullying.
A self-regulatory charter titled Safer Social Networking Principles for the EU
(SSNPs) has been developed by the European Commission and Social Network
83
http://www.communications.gov.au/__data/assets/pdf_file/0018/242532/Cyberbullying_Research_R
eport_-_Part_C.pdf
35
Providers following public consultation on online social networking by the European
Commission (European Social Networking Task Force, 2009).
The UK has no specific law that makes cyber-bullying illegal and no legal definition
of cyber-bullying; however, there are a number of existing criminal and civil laws that
can be applied to cases of cyber-bullying in terms of harassing, menacing and
threatening communications. There is a legal requirement for all schools to have an
anti-bullying policy. In addition, schools in the UK have the power to regulate the
conduct of students outside of school grounds where it affects life in school. The age
of criminal responsibility starts at the age of 10.
In Belgium, a number of existing legislative provisions can be applicable to cases of
cyber bullying on social networking sites: most are formulated in a technology-
neutral manner, which implies that they may be applied in a social networking site
environment`. The Youth Protection Act does impose, instead of the punishments of
the Criminal Code, other measures, including supervision, education, disciplinary
measures, guidance, advice or support, which can be imposed on parents or on the
minors themselves. The age of the minor in question is considered: different measures
are imposed before and after the age of 12. In addition, a Judge may give preference
to victim offender mediation. Parents and teachers may in certain circumstances be
held liable for the acts of their children or pupils.
In the Netherlands, the government is planning to have legislation on bullying in
which they intend to include an obligation for schools to deal with bullying problems
by, e.g. having effective anti-bullying programs in place.
In Portugal, there are no specific legal actions against bullying/school violence
outside the general law about children and youth.
In Ireland, there is no legislation that expressly deals with the issue of cyber-bullying.
There are a number of criminal law and education law provisions and guidelines
given to schools, which implicitly include these behaviours.
Australia and New Zealand
In Australia, the UN Convention of the Rights of the Child (UNCRC) enshrines in
international law that children have the same rights as adults, while also having the
right to special care and assistance due to their vulnerability. A number of Australian
civil and criminal laws are relevant to cyber-bullying including:
the duty of care of schools
crime compensation schemes
communications law
criminal proceedings
Police in every Australian jurisdiction have discretion to use diversionary methods for
juvenile offenders in preference to using criminal proceedings. These include:
assistance
warnings
cautions
youth justice conferencing
36
Criminal proceedings are only used in the most serious cases or when a young person
prefers to go to court. Very few such prosecutions have occurred.
The New Zealand Government introduced the Harmful Digital Communications Bill
in November 2013. The Bill was referred to the Justice and Electoral Select
Committee for consideration; the Committee`s report was released on 27 May 2014.
The Bill paves the way to amend and clarify existing legislation regarding digital
communications, create new criminal offences to deal with the most serious acts, and
create a new civil enforcement regime to deal effectively and quickly with harmful
digital communications.
In establishing the offence of causing harm by posting a digital communication, the
Bill provides that a person found to have committed this offence is liable to
imprisonment for up to 3 months, or a fine not exceeding NZ$2,000. Within the civil
enforcement regime, individuals may make initial complaints about harmful digital
communications to an Approved Agency. There is no specific mention of an
information and education campaign to accompany the introduction and
implementation of the new legislation.
In summary, the majority of the jurisdictions examined in this research can be
assigned to one of two categories:
those that have explicit laws on cyber-bullying, and
those who do not have specific cyber-bullying laws but have a number of existing
legislative provisions or other measures, including education, support, and
disciplinary actions that may be applied to cases of cyber-bullying.
A number of jurisdictions have more than one solution to address the issue of cyber-
bullying and many are currently building their own evidence-base to inform future
directions in this field.
37
Appendix D
Rapid removal of cyber-bullying material from social media services -
policy options and analysis
The market has failed to adequately address all cases of harmful online behaviour
targeted at children.
Research commissioned by the Government indicates that social media services have
not been sufficiently responsive to requests to remove cyber-bullying material. This
has been reinforced by submissions to the public consultation process as well as
periodic reports in the media.
Academic commentators have expressed the view that the occurrence of cyber-
bullying is not adequately addressed by current measures: It is clear that social
networking sites...have not done enough to protect Australian children from
cyberbullying...Parents or guardians should be afforded the opportunity to take
actions to protect their child from harm.`84
Implementing a rapid removal scheme may further assist large social media services
with identifying which instances of harmful material require urgent removal, in cases
where requests for the removal of harmful material have been reported but not
actioned. Social media sites and end-users can be expected to benefit significantly by
being able to rely upon a proper investigation by an independent authority into the
circumstances of particular cases.
On 17 September 2014, the Government announced that it will implement its election
commitment to appoint a Children`s e-Safety Commissioner and that it was preparing
legislation to enhance online safety for children to be introduced in Parliament by the
end of 2014. On 28 October 2014, the Parliamentary Secretary to the Minister for
Communications announced that the Commissioner would be established as an
ongoing, independent statutory office within the Australian Communications and
Media Authority. The Commissioner`s office will be a single point of contact for
online safety issues for industry, Australian children and those charged with their
welfare. The Commissioner will take the lead in developing and implementing online
safety policies for children, and will be responsible for the improved coordination of
content and messages around online safety.
All existing online safety initiatives in the Department of Communications and the
ACMA will be transferred to the Commissioner.
To give effect to the Government`s commitment to have an effective complaints
system, backed by legislation, to get cyberbullying material targeted at an Australian
child, down quickly from large social media sites, the legislation will provide for a
two tier scheme, administered by the Commissioner, to deal with complaints about
cyber-bullying material.
What are the policy options?
Two policy options are discussed below, including:
84
Srivastava, Gamble & Boey, Cyberbullying in Australia: Clarifying the Problem, Considering the
Solutions, International Journal of Children`s Rights 21 (2013) 25-45, May 2013
38
a. status quo (non-regulatory); and
b. an effective complaints system, backed by legislation, to get harmful material
down fast from large social media services:
i. a regulatory scheme for removal of cyber-bullying material which applies
to all large sites, with penalties for non-compliance; or
ii. a two-tiered scheme, backed by legislation, for the rapid removal of
cyber-bullying material from social media services.
a. Status quo (Non-regulatory)
Every social media service has different terms of use that govern its relationship with
users who interact with the site. Most of the major social media services have terms
and conditions which sufficiently prohibit cyber-bullying material. For example:
the Facebook Community Standards prohibit bullying and harassment;
the Twitter Rules do not allow users to engage in targeted abuse or harassment;
and
The YouTube Community guidelines state that there is zero tolerance for
predatory behaviour, stalking, threats, harassment....
The Cooperative Arrangement for Complaints Handling on Social Networking Sites
described in Appendix A assists in improving the information that signatory social
networking sites make available to their users about their handling of complaints for
material posted online, and to highlight and educate social networking site users on
mechanisms to deal with problems which arise on their sites.
While the Protocol is a good start, it has its shortcomings, including:
it includes no tangible timeframes for removal of cyber-bullying material;
compliance with the Protocol by industry is voluntary - signatories can choose to
stop participating;
it is not reviewable - no independent third party to review decisions where there
is disagreement; and
it is not enforceable - there are no sanctions for non-compliance.
b. An effective complaints system, backed by legislation, to get harmful material
down fast from large social media services
In its election commitment, the Government stated that it would introduce an effective
complaints system, backed by legislation, to get harmful material down fast from
large social media services (the scheme). This commitment resulted from the
Coalition`s consultation with the community while in Opposition, which indicated a
need to have online material that is harmful to a specific child removed as quickly as
possible.
i. Regulatory scheme for removal of cyber-bullying material which applies
to all large social media services, with penalties for failing to comply
Features of this option include:
The scheme would apply to all large social media services.
39
A company which operates a large social media service would be required to put
in place an acceptable complaints handling and rapid removal arrangement where
this did not presently exist.
The Commissioner would determine the criteria for such an arrangement and
would be authorised to assess acceptability.
In circumstances where the Commissioner finds that the complaints handling
policy of a large social media service does not meet an acceptable standard, the
Commissioner could issue an improvement notice.
If the large social media service fails to respond adequately to the improvement
notice, the Commissioner would be empowered to make a public statement on the
shortcomings of the site`s complaints handling processes.
The Commissioner would be able to receive complaints about harmful material
that is directed at a specific child from eligible complainants.
The scheme would require eligible complainants to report and request removal of
the harmful material, in the first instance, to the large social media service via the
social media service`s own complaints handling system, before lodging a
complaint with the Commissioner.
Where the large social media service fails to adequately respond to the complaint
or fails to remove the material, the Commissioner would investigate the
complaint and assess whether the material is targeted at and likely to cause harm
to an Australian child.
The Commissioner would issue a notice to remove the material to the large social
media service.
Where a large social media service or an individual fails to comply with a notice
to remove material, sanctions for non-compliance would apply.
At any stage during this process, the Commissioner would be empowered to refer
complaints to appropriate bodies if necessary, including police, schools and child
welfare organisations.
Impacts on stakeholders
This option would impose costs on all large social media services. Costs involved
would include:
Development of appropriate systems and processes relating to complaints
handling and rapid removal of cyber-bullying material, where these processes did
not already exist;
Provision of a contact person to liaise with the Commissioner on complaints
referred by the Commissioner;
Compliance with a removal notice.
The benefits of this scheme would apply to children who have been the target of
cyber-bullying material. Benefits would include having cyber-bullying material taken
down quickly, particularly in instances where the social media site had refused to
remove material, based on its consideration of the material.
40
While child protection organisations and education bodies have advocated strongly
for a scheme for the rapid removal of harmful material from social media services,
industry is opposed to a scheme that involves heavy handed regulation.
ii. A two-tiered scheme, backed by legislation, for the rapid removal of
cyber-bullying material from social media services
Following public consultation and specific negotiation with industry, a two-tiered
scheme is proposed. Under this option, the Australian Government would expect that
all social media services accessible to Australian children, as a matter of good
practice, have a complaints management system, terms of use which sufficiently
prohibit cyber-bullying material and a contact point for the Commissioner to refer
complaints that users consider have not been adequately dealt with.
Legislation would set out a two-tiered scheme for the rapid removal of cyber-bullying
material from social media services. Social media services voluntarily participating
under Tier 1 (Tier 1 SMS) would not be subject to legally binding notices or penalties.
Social media services that are declared by the Minister for Communications (the
Minister) under Tier 2 (Tier 2 SMS) would be subject to legally binding notices and
penalties.
Only large social media services could be declared as subject to Tier 2 regulation
(unless smaller social media services volunteer to participate under Tier 2). To avoid
being subject to such formal regulation, it is expected such sites would voluntarily
participate in Tier 1. The legislation would state that a site cannot be subject to Tier 2
regulation while it is participating under Tier 1.
To participate in Tier 1 a site would need to lodge a written application and have it
accepted by the Commissioner. The application must demonstrate that the social
media service has a complaints management system, terms of use which sufficiently
prohibit cyber-bullying material and a contact point for the Commissioner to refer
complaints that users consider have not been adequately dealt with.
It would be open to smaller sites to voluntarily participate in either Tier 1 or Tier 2. It
is expected that some sites may choose to participate in the scheme for reputational
reasons.
An additional benefit of participating in Tier 1, as opposed to Tier 2, is allowing each
Tier 1 site the option of having any assessment by the Commissioner of whether
particular material is cyber-bullying material made by reference to the social media
service`s own terms of use, rather than by reference to the definition of targeted
cyber-bullying material in the Act.
The Commissioner would have the power to revoke a declaration of a social media
service`s Tier 1 SMS status if the Tier 1 SMS repeatedly failed to act to remove
cyber-bullying material following requests from the Commissioner over a period of
12 months.
The Minister could declare a site a Tier 2 SMS following a recommendation from the
Commissioner.
A social media service may be declared a Tier 2 SMS, if both of the following
conditions are met:
the Commissioner is of the opinion that the social media service is a large social
media service; and
41
the social media service is not a Tier 1 SMS and has had reasonable opportunity
to be a Tier 1 SMS; or
the social media service has made a written application to be subject to formal
regulation under Tier 2.
A social media service subject to Tier 2 would be legally required to comply with a
notice to remove cyber-bullying material issued by the Commissioner. Court action
can be taken where a social media service fails to comply with a notice.
The Tier 2 provisions are restricted to large social media services (except in
circumstances where a site has applied of its own volition to be subject to formal
regulation) to capture those sites that Australian children and young people are most
likely to be using.
In addition, large sites can be expected to comply with an Australian regulatory
scheme for legal and corporate reputational reasons. By contrast, smaller social media
services, typically hosted, and controlled from, outside Australia, in practical terms
are likely to be able to disregard Australian legislation with effective impunity.
Further, this approach amounts to a formal statement of expectations on behalf of the
Australian community that these are the standards that all social media services are
expected to meet.
The Commissioner would receive complaints by or on behalf of Australian children
regarding cyber-bullying material occurring on social media services. At any stage,
the Commissioner would be empowered to refer complaints to appropriate bodies if
necessary, including police, schools and child welfare organisations.
Impacts on stakeholders
This option would impose costs on participating social media services. Costs involved
would include:
Application to the Commissioner to participate in tier 1
Provision of a contact person to liaise with the Commissioner on complaints
referred by the Commissioner.
Key differences between this option and sub-option (b)(i) is the lack of costs
associated with having to develop complaints handling and rapid removal systems and
processes, and lack of costs associated with compliance with removal notices. Sites
with pre-existing complaints handling processes would be expected to be successful
in applying for tier 1 status, and would therefore not be subject to any compliance
costs. As a result, it is also expected that no large sites would be declared as a tier 2
social media service.
The benefits of this scheme would apply to children who have been the target of
cyber-bullying material. Benefits would include having cyber-bullying material taken
down quickly, particularly in instances where the social media site had not removed
material, based on its consideration of the material.
Concerns have been raised by social media sites that a rapid removal scheme may
result in an increase in the volume of reports being made to social media services.
However, social media sites have advised that they invest heavily in reporting tools
and encourage their users to report any abuse, including bullying and harassment,
directly to them. Given the extent of investment in these tools and the heavy
42
promotion of these by sites, it is not clear that the establishment of the Commissioner
would result in complaints being made that are not already being raised with the sites.
Further, social media sites have not provided any evidence to back their claim that
complaint volumes will increase. As a result, it is not expected that there would be
any costs flowing from a rise in complaints, and if there was any rise, it would be
expected to be relatively modest.
What is the likely net benefit of each option?
The harms of cyber-bullying to individuals and to society are difficult to quantify and
measure. Harms associated with cyber-bullying include anxiety, suicidal thoughts,
depression and psychosomatic and behavioural problems. These harms can flow on
to, and impact on, other areas of life: ability to socialise, self-esteem, self-worth. It is
difficult to measure how cyber-bullying occasioned as a child may impact on an
individual`s ability to contribute to society, enter into meaningful relationships, to
find meaningful employment, etc later in life. The flow on effects to society,
including the need for provision of counselling services, provision of mental health
services, assistance in seeking employment are likewise difficult to gauge.
Rather than a strict assessment of economic cost for each option (in terms of cyber-
bullying harm) in determining the net benefits of each option below, regard will be
given to how each option rates relative to the others against a set of pre-determined
priorities which would reduce the amount of harm caused by cyber-bullying.
The priorities that each option will be assessed against are:
ability of the measure to reduce the number of cyber-bullying instances in general
(general instances of cyber-bullying);
ability of the measure to reduce the amount of time that instances of cyber-
bullying material would be available (on the assumption that the longer instances
of cyber-bullying are available, and the longer they are able to be viewed or
disseminated, the more harm is caused by that material) (exposure to material);
ability of the measure to reduce further instances of cyber-bullying by the same
perpetrator (further behaviours by bully).
Each option will be given a score out of 10 for each priority, with a score of five
indicating no change at all (compared to status quo), and a score of 10 indicating
complete absence of any general instances of cyber-bullying material, little to no
exposure to material (ie taken down or removed within minutes), and no further
cyber-bullying behaviours at all by the bully). A score of one would represent a
significant increase in these.
Regulatory cost will be given a score of either low`, medium` or high`, relative to
each other option considered.
a. Status quo (Non-regulatory)
Maintaining the status quo is the least resource intensive option.
However, it was clear from the Coalition`s consultation, while in Opposition, that
many parents and teachers feel ill-equipped to deal with the challenge of protecting
children from online dangers. In particular, the issue of not being able to quickly
remove cyber-bullying material from social media services is a significant issue. The
Protocol relies upon voluntary participation of social networking sites. There are no
43
sanctions or legal consequences for failure to comply, which lowers the incentive for
a social networking site to comply with its commitment under the arrangement.
Under the Protocol, participating social networking sites have no obligation to deal
with complaints or remove material within a specific timeframe. The National
Children`s and Youth Law Centre has indicated to the Department of
Communications that:
To delay the removal of harmful content [...] is to delay crucial intervention for
Australian children and young people suffering from cyber bullying, incitement
to harm or suicide or the non-consensual distribution of sexually charged
material. The consequences of this denial of protection can, in some cases, be
catastrophic.
Further, under existing arrangements, victims of cyber-bullying cannot escalate
complaints which are not sufficiently dealt with by social networking sites. The
Commissioner would be a high profile, centralised point to which victims can seek
redress.
The Government has made an election commitment to do more to protect children
online.
General instances Exposure to Further behaviours
material
Harm* 5 5 5
Regulatory cost Low (compared to other options) - no new regulation or
requirements
*Harm - (1 = significant increase; 5 = no change; 10 = significant decrease/no more
instances, exposure, or further behaviours).
b. An effective complaints system, backed by legislation, to get harmful material
down fast from large social media services
i. Regulatory scheme for removal of cyber-bullying material which applies
to all participating large social media services, with penalties for failing
to comply
This option would affect all large social media services.
While the Minister for Communications would determine which social media services
are considered large`, it is anticipated that the scheme would likely apply to the
social media services most used by Australian children. Most of the larger social
media services are members of the Australian Interactive Media Industry Association.
It is estimated that large social media services would incur significant costs under this
option, including development of appropriate complaints handling systems and
processes where these processes did not already exist, provision of a contact person to
liaise with the Commissioner on complaints referred by the Commissioner, and
complying with orders from the Commissioner.
44
This option would provide a mechanism for victims of cyber-bullying to have cyber-
bullying material removed where the market fails to do so. It would provide recourse
for victims without victims having to seek redress through the criminal justice system.
However, consultation with industry has indicated that this option would place a
heavy regulatory burden on large social media services, many of which already have
well established complaints handling systems, and not impose obligations on smaller
sites which may not have mechanisms for addressing cyber-bullying.
General instances Exposure to Further
material behaviours
Harm* 5 8 6
Regulatory cost High (compared to other options) - all large social media
services providing services to Australian children would be
subject to strict regulatory measures for the removal of cyber-
bullying material
*Harm - (1 = significant increase; 5 = no change; 10 = significant decrease/no more
instances, exposure, or further behaviours).
ii. A two-tiered scheme, backed by legislation, for the rapid removal of
cyber-bullying material from social media services
This option would affect social media services.
It is estimated that social media services would incur costs relating to:
applying to the Commissioner to become a Tier 1 SMS; and
providing a contact person for the Commissioner to engage with.
There would not be regulatory costs associated with complying with notices, as tier 1
sites are not subject to enforceable obligations and we expect no large sites would be
declared tier 2.
The Australian Government would expect that all social media services, as a matter of
good practice, have a complaints management system, terms of use which sufficiently
prohibit cyber-bullying material and a contact point for the Commissioner to refer
complaints that users consider have not been adequately dealt with. The majority of
large social media services, predominantly used by Australian children, would
reasonably be regarded to have such systems and measures in place and would be
expected to fall within the non-regulatory part of the scheme (Tier 1). As a result, it is
estimated that such sites would not incur costs relating to Tier 2. Further, as current
business practices of such services involve maintaining a robust reporting
infrastructure, regardless of legislative requirements, and as Tier 1 SMS will not have
a legal obligation to comply with requests made by the Commissioner, this proposal is
not expected to place any additional costs on Tier 1 SMS other than those mentioned
above.
The implementation of this option would enable the Commissioner to work
collaboratively with industry and leverage social media services` existing complaints
handling processes and online safety initiatives.
45
Design of this option reflects discussion with social media services to minimise the
impact on their businesses.
The Department has consulted with stakeholders on the assumptions underpinning the
regulatory costing of this option. Further detail on the feedback received is outlined at
Appendix G. In estimating the regulatory impact of this option on industry, the
Department has assumed that ten social media sites will apply to the Commissioner to
become a Tier 1 SMS. The Department has consulted with the social media service
industry, and expects that the application process will involve three employees and
will involve up to five hours of work for each person. Each Tier 1 site would need to
provide a contact person for engaging with the Commissioner, and it is assumed that
each contact person will engage with the Commissioner up to a total of 24 days (192
hours) per year. It is also assumed that there will be no sites declared Tier 2 under the
scheme, as the majority of large social media services that provide services to
Australian children have business practices in place including terms of use dealing
with cyber-bullying, and would successfully be able to apply for Tier 1 status under
the scheme.
The two-tiered scheme would provide most of the same benefits as option (b)(i) but
without placing the same regulatory burden on industry. Public-private partnership
models have been successfully adopted in the United States, Europe and in the United
Kingdom.85
This option provides a low regulatory burden for industry whilst still offering real,
tangible and meaningful benefits for children who are victims of cyber-bullying, their
parents and teachers. It would also deliver social benefits by reducing the harm caused
by cyber-bullying on children.
General instances Exposure to Further behaviours
material
Harm* 5 8 6
Regulatory cost Low/medium (compared to other options) -this option is light
touch and would rely on social media services existing systems
and processes. Only services in Tier 2 would be subject to strict
regulatory measures for the removal of cyber-bullying material,
however it is not anticipated there will be many Tier 2 services,
if any at all. There would be limited compliance costs for
industry, involving applying for Tier 1, and a contact person for
each Tier 1 service interacting with the Commissioner on an
occasional basis (up to 24 days per year), based on industry
estimates.
*Harm - (1 = significant increase; 5 = no change; 10 = significant decrease/no more
instances, exposure, or further behaviours).
85
Facebook, submission to the public consultation on Enhancing Online Safety for Children, 7 March
2014
46
Of the options identified above, option (b)(ii) is considered to have the highest net
benefit on the basis that it would produce greater benefits than option (a),
commensurate benefits with option (b)(i), but would have significantly lower costs
than option (b)(i) (commensurate with the costs of option (a)).
This is summarised in the table below. The preferred option is highlighted.
Option Harm from Harm from Harm from Regulatory
number of exposure to further cost
general material* behaviours*
instances*
Status quo 5 5 5 Low
Regulatory 5 8 6 High
scheme
applying to all
sites
Two-tier 5 8 6 Low/medium
scheme
*Harm - (1 = significant increase; 5 = no change; 10 = significant decrease/no more
instances, exposure, or further behaviours).
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Appendix E
Response to perpetrators of cyber-bullying
Currently, Australian children who are the target of cyber-bullying do not have a path
to seek redress against the author of the cyber-bullying material other than resorting to
existing criminal law remedies.
There is limited quantitative information about how many schools fail to respond
appropriately to cyber-bullying. However, schools have reported taking no action on
cyber-bullying reports because: 86
the issue was deemed outside of the school`s responsibilities;
the incident did not occur during school hours; and
the school chose to take no action to avoid inflaming the situation.
Cyber-bullying complaints that cannot be dealt with at the school level are generally
directed to local police, who may need to manage resources in order to respond to
cyber-bullying complaints. It should be noted that the police can only deal with
criminal cases of cyber-bullying and are not able to act on instances that do not
constitute criminal conduct.
Research indicates there is a considerable discrepancy between the number of cyber-
bullying instances schools and victims of cyber-bullying say they report to police and
the number of reports registered by police. Research indicates that very few cases of
cyber-bullying involving Australian minors are prosecuted. It should be noted that not
all cyber-bullying is, nor should be, considered criminal in nature. In addition, parents
of the victim may not wish to pursue charges against the perpetrator so as to avoid
their child having to go through court proceedings. Police understandably avoid
investigating low level matters where the offender is a juvenile and prefer youth
cyber-bullying matters to be dealt with by schools or other agencies outside the
criminal justice system. This way the perpetrator may receive education and
assistance to overcome their behaviours, without having a criminal record. This
situation is likely to be contributing to a perception that cyber-bullying is not
currently adequately addressed nor does it carry any consequences for the perpetrator.
A majority of submissions to the public consultation supported non-custodial
penalties for minors, such as mediation, infringement notices and educative options.
Current arrangements to respond to cyber-bullying are ineffective, as parents and
children must make a complaint to police or schools who may not be resourced or
have the capability to deal with an issue effectively. The Commissioner would be a
leading, high-profile figure who is easily accessible by children, parents and schools.
The Commissioner`s website would have an online complaints form which would be
easy to fill out and appropriate for children. The staff of the Commissioner would be
trained to deal with children and would have strong knowledge of the existing laws
relating to cyber-bullying. The availability of a mechanism for dealing with those
complaints that cannot be addressed by schools but which are not of a serious enough
86
http://www.communications.gov.au/publications/publications/cyber-bullying
48
nature to be considered by police would address a critical gap in existing ways of
addressing cyber-bullying.
In this regard, a further element of the framework announced by the Government in
October will be a power for the Commissioner to issue a notice against a person who
has posted cyberbullying material targeted at an Australian child.
This notice, an end user notice`, will for example require the end user who posted the
material to remove it; to refrain from posting more such material; or to apologise to
the victim.
The Government has drawn on a number of models in developing this mechanism.
One is the provisions in the planned New Zealand legislation dealing with
cyberbullying. Another is the experience of the National Children`s & Youth Law
Centre based at the University of New South Wales. They have found that in many
cases a formal written request to cease cyber-bullying behaviour, issued by their
service, resolves the issue.
The legislation will not include the power for the Commissioner to fine end users who
fail to respond to a notice, because the Government is wary of imposing fines on
children. Rather, the next steps available to the Commissioner, if the recipient of the
notice fails to respond, will include going to court to seek an injunction; and referring
the matter to the police.
What are the policy options?
Four policy options are discussed below, including:
a. status quo (non-regulatory);
b. implement education and awareness raising measures to better explain the
application of existing offences;
c. create a separate cyber-bullying criminal offence covering conduct where the
victim is a minor, with a lesser maximum penalty; and
d. create a separate cyber-bullying notice regime to deal with cyber-bullying
behaviour.
a. Status quo (Non-regulatory)
The following measures and initiatives are currently available to Australians dealing
with online safety concerns:
Section 474.17 of the Criminal Code Act 1995 (Cth) (the Criminal Code) makes
it an offence for a person to use a carriage service, including the internet, social
media services or a telephone, in a way that reasonable persons would regard as
being menacing, harassing or offensive. The maximum penalty for this offence is
three years imprisonment and/or a fine of up to $30,600.
Section 474.15 of the Criminal Code also makes it an offence to use a carriage
service to threaten to kill (punishable by ten years imprisonment) or cause serious
harm to (punishable by seven years imprisonment) a person. It is required that the
person who makes the threat must intend the recipient of the threat to fear that the
threat will be carried out.
49
Each state and territory has anti-stalking and threatening behaviour laws, which
may apply to cyber-bullying conduct. States and territories also have their own
defamation laws which may apply to online content.
Issues relating to online content can be the basis for complaints to the Australian
Human Rights Commission under federal anti-discrimination law (for example,
online content that is alleged to constitute sexual harassment or racial
vilification).
The Online Content Scheme is set out in the Broadcasting Services Act 1992 and
regulates illegal and offensive online content in Australia with reference to the
National Classification Scheme.
Existing Australian Government online safety initiatives include the Cybersmart
programme, Cybersafety Help Button and Easy Guide to Socialising Online.
Commentary on the existing offences (sections 474.15 and 474.17) has suggested that
the language of these provisions is difficult to understand, and as noted in the policy
to Enhance Online Safety for Children, most people would not know what using a
carriage service` means.
b. Implement education and awareness raising measures to better explain the
application of the current offence
This option would involve providing better education and messaging to students,
parents, teachers and law enforcement agencies about the current offences and the
legal consequences of cyber-bullying.
Impacts on stakeholders
This option would not impose any regulatory costs on stakeholders. However
students, parents, teachers and others would benefit from a greater understanding of
existing cyber-bullying offences and consequences, and this would be likely to lead to
reduced instances of cyber-bullying.
c. Create a separate cyber-bullying offence covering conduct where the victim is
a minor, with a lesser maximum penalty
In the policy to Enhance Online Safety for Children, the Government committed to
examining existing Commonwealth legislation to determine whether to create a new,
simplified cyber-bullying offence.
A new cyber-bullying offence could be introduced to specifically address conduct
where a victim is a minor, with a lower maximum penalty prescribed. Such an offence
could be based on section 474.17 of the Criminal Code and would still allow recourse
to the existing offence for particularly serious incidents.
Lesser penalties could include fines, counselling, restorative justice, community-
based orders and probation.
Awareness raising for such a new offence would need to be undertaken, or there
would be the risk that the new offence would be lost with the lack of awareness of
existing offences.
50
Impacts on stakeholders
This option would not result in any new regulatory costs. However the introduction of
a specific offence that captures less serious instances of cyber-bullying, which might
be better managed by schools or parents, would cause an increase in the
criminalisation of young people for objectively less serious offences.
d. Create a separate cyber-bullying notice regime to deal with cyberbullying
behaviour
This option is based on the civil enforcement regime proposed in New Zealand`s
Harmful Digital Communications Bill. Under the proposed New Zealand regime, a
person subject to harmful digital communication may make a complaint to an
Approved Agency`.
A cyber-bullying notice regime would offer an Australian child who is the target of
cyber-bullying material, a path to seek redress against the person who posted the
cyber-bullying material. The Commissioner would be expected to engage with the
relevant parties and use advice and persuasion (as appropriate) to resolve cyber-
bullying complaints.
The Commissioner will assist in resolving cyber-bullying disputes involving children
that take place via electronic communications and cannot be resolved at the school
level but do not warrant police involvement. Cyber-bullying involving students at the
same school will be best resolved by the school at first instance. Cyber-bullying
involving serious threats, blackmail or other serious criminal activity would be
referred to the police.
Under the regime, the Commissioner would have the power to issue a notice against a
person who posted cyber-bullying material targeted at an Australian child, requiring
the person to: remove the cyber-bullying material; cease posting cyber-bullying
material targeted at the child and/or apologise.
If a person fails to comply with the Commissioner`s notice, the Commissioner may
apply to the Federal Circuit Court of Australia for an injunction against the person
and/or notify Federal, State or Territory Police that the person has posted cyber-
bullying material targeted at an Australian child, has failed to comply with the
Commissioner`s notice, and the Commissioner is of the opinion that the police could
appropriately have regard to the person`s conduct under criminal law.
The cyber-bullying notice regime would apply to posted cyber-bullying material on
social media services or any other relevant electronic service including email, text
messages, instant messages, online games and chat functions on websites.
To reduce duplication and minimise the number of complaints handled by the
Commissioner, the Commissioner will work with schools and police to establish
processes to work together, undertake an information campaign to outline the purpose
and role of the Commissioner and develop guidelines for handling reports of cyber-
bullying (including reports of cyber-bullying arising through the proposed Australian
Cybercrime Online Reporting Network (ACORN)).
The Commissioner will work with the police and schools to develop referral
mechanisms to deal with cyber-bullying complaints more quickly and effectively.
51
Impacts on stakeholders
This option would not result in any new regulatory costs. However it is expected that
this option would have a similar educative function to option (b) in raising awareness
of the consequences of cyber-bullying.
What is the likely net benefit of each option?
The costs and benefits of each option will be assessed in a similar manner as to the
assessment for options in Appendix D.
a. Status quo
Maintaining the status quo is the least resource intensive option.
However, this would mean that the current inefficient arrangements for dealing with
cyber-bullying would remain and the negative impact of cyber-bullying would
continue and perhaps grow. It should be noted that:
cyber-bullying complaints that cannot be dealt with at the school level are
generally directed to local police who have limited resources or skills to deal with
these complaints, particularly those that do not warrant a criminal law response;
there is limited awareness of the existing legal remedies; and
pursuing criminal proceedings for cyber-bullying can lead to re-victimisation of
the child.
The Government has made an election commitment to do more to protect children
online.
General instances Exposure to Further
material behaviours
Harm* 5 5 5
Regulatory cost Low (commensurate with other options) - no new regulation
*Harm - (1 = significant increase; 5 = no change; 10 = significant decrease/no more
instances, exposure, or further behaviours).
b. Implement education and awareness raising measures to better explain the
application of the current offence
Greater education and awareness-raising measures would be directed at children,
those charged with the welfare of children and law enforcement.
Educational initiatives are non-regulatory and have the potential to improve policy
outcomes through better awareness and enforcement of the laws already in place.
Some of the benefits of the existing Commonwealth Criminal Code offences are as
follows:
covers a range of conduct: the conduct may be explicit and contained in the
content of the communications, or implicit and inferred by the type of use (e.g.
multiple postings on a website), as long as a reasonable person would regard the
conduct as being menacing, harassing or offensive;
52
uses an objective standard: reasonable persons` must regard the use of the
carriage service as menacing, harassing or offensive for an offence to be
committed. This allows community standards and common sense to be taken into
account when determining whether conduct is menacing, harassing or offensive;
allows alternative sentencing options based on relevant state or territory
sentencing options, such as a community service order; and
since coming into effect in 2005, has been used to support 308 successful
prosecutions for a broad range of conduct involving the internet, including eight
prosecutions involving defendants under 18 years of age.
More may need to be done to raise awareness about the existing law and its
application to cyber-bullying. This could increase the effectiveness of the existing law
in deterring cyber-bullying.
Increasing education and awareness of the existing cyber-bullying offences was
supported by a number of submissions to the public consultation, including by
industry, child welfare and community organisations and legal bodies.
Greater education and awareness-raising measures would ensure young Australians
more clearly understand that cyber-bullying can constitute an offence and that a broad
range of sentencing options may apply. However, merely raising awareness about
potential criminal consequences of cyber-bullying may have only limited impact. It is
likely that the existing problems with police failing to deal with any but the most
serious of cyber-bullying complaints will remain.
A key function of the Commissioner will be to promote online safety for Children,
including through improved education and awareness raising activities.
General instances Exposure to Further behaviours
material
Harm* 7 5 7
Regulatory cost Low (commensurate with other options) - no new regulation
*Harm - (1 = significant increase; 5 = no change; 10 = significant decrease/no more
instances, exposure, or further behaviours).
c. Create a separate cyber-bullying criminal offence covering conduct where
the victim is a minor, with a lesser maximum penalty
The creation of a new criminal offence would affect minors, those charged with the
welfare of children, police and judicial staff.
This option may cause a potential increase in reporting of cyber-bullying to police,
who have limited resources to respond to cyber-bullying matters. It may also increase
the resourcing burden on the court system.
There are also social costs associated with this option, including:
the possibility that it may over-extend to behaviour which should not be treated
as a criminal offence and encourage over-reporting of incidents;
53
more minors being charged with criminal offences, thereby increasing pressure
on the legal system, and increasing trauma for offenders and victims due to the
seriousness of criminal sanctions; and
a new law may cause confusion regarding the application of the existing offence.
The benefits of creating a mid-range cyber-bullying offence include:
a more effective deterrent to cyber-bullying behaviour;
the new offence could use language that would be easier for minors to
understand;
an increased likelihood of prosecution for mid-range offending given a maximum
penalty that is more proportionate to such offending by minors; and
an opportunity to raise the awareness of students, parents and teachers about the
legal consequences of cyber-bullying.
Although support for a new cyber-bullying criminal offence was evenly divided
amongst submissions to the public consultation, the costs of implementing and
enforcing a new offence outweigh the benefits it would provide. Further, it is probable
that the existing problems with police failing to deal with any but the most serious of
cyber-bullying complaints will remain.
General instances Exposure to Further behaviours
material
Harm* 6 5 9
Regulatory cost Low (commensurate with other options) - new regulation
mirrors existing law, but limits application to minors and has a
commensurate lower penalty
*Harm - (1 = significant increase; 5 = no change; 10 = significant decrease/no more
instances, exposure, or further behaviours).
d. Create a separate cyber-bullying notice regime to deal with cyber-bullying
behaviour
A cyber-bullying notice regime would affect victims and perpetrators of cyber-
bullying, and those charged with the welfare of children.
It would create an increased deterrent to cyber-bullying behaviour and reduce the
pressure on police resources.
Benefits of this option include:
civil and prevention based behavioural interventions are preferred to criminal
sanctions, especially in relation to minors;
would be a more expedient process for dealing with cyber-bullying;
would address socially undesirable behaviours which cause cyber-bullying and
would act as a deterrent to re-offending;
an opportunity for the Commissioner to raise the awareness of perpetrators of
cyber-bullying about the legal and other consequences of cyber-bullying.
54
would reduce physical and mental harm caused by cyber-bullying; and
may take some of the resourcing burden off schools and police in dealing with
cyber-bullying issues.
The implementation of a civil regime was supported by a range of submissions to the
public consultation, including child welfare and community organisations, the
Australian Federal Police and the Law Council of Australia. Further, it would
specifically target the identified gap between schools and law enforcement in
handling complaints about cyber-bullying.
General instances Exposure to Further behaviours
material
Harm* 6 8 9
Regulatory cost Low (commensurate with other options) - new regulation, but
cost with complying are not considered as regulatory costs for
purposes of the RIS.
*Harm - (1 = significant increase; 5 = no change; 10 = significant decrease/no more
instances, exposure, or further behaviours).
Of the options identified above, option (d) is considered to have the highest net
benefit on the basis that it would have a commensurate level of regulatory costs to the
other three options, but would produce equal or greater benefits in terms of reducing
harm from cyber-bullying material in comparison to the other options. Option (b) is
also considered to be favourable on the basis that it would greatly reduce the harm
caused from general instances of cyber-bullying, while having a very low regulatory
impact.
This is summarised in the table below. The preferred options are highlighted.
Option Harm from Harm from Harm from Regulatory
number of exposure to further cost
general material* behaviours*
instances*
Status quo 5 5 5 Low
Education and 7 5 7 Low
awareness raising
measures
New 6 5 9 Low
cyber-bullying
offence
New 6 8 9 Low
cyber-bullying
notice regime
55
*Harm - (1 = significant increase; 5 = no change; 10 = significant decrease/no more
instances, exposure, or further behaviours).
56
Appendix F
Quality assurance of online safety programmes offered in schools
Research commissioned by the Department of Communications into youth awareness
of cyber-bullying as a criminal offence provides supplementary evidence that schools
are not providing best practice education on cyber-bullying, with the research
identifying that: 87
only 63 per cent of youth agreed that cyber-bullying could be considered an
offence punishable by law; and
youth had a very low level of understanding that defamation (or saying
something untrue about others`) online could definitely be a crime (26 per cent).
In the absence of a certified approach to online safety education of parents, carers,
teachers and children, Government cannot be certain that threats to Australian
children, particularly in regard to cyber-bullying, are being adequately and
authoritatively addressed.
In order for educational programmes about online safety to be effective, online safety
messages must be thorough, consistent, factual, engaging and tailored to the needs of
the audience.
Two policy options are discussed below, including:
a. status quo (non-regulatory); and
b. voluntary certification process.
a. Status quo (Non-regulatory)
All forms of abuse have a detrimental effect to a person`s mental and physical health.
Victims of cyberbullying can experience significant social isolation and feel unsafe. It
can lead to emotional and physical harm, loss of self-esteem, feelings of shame and
anxiety, concentration and learning difficulties. Incidents of young people committing
suicide have also been linked with cyberbullying.
Schools are commissioning a range of third-party providers to deliver online safety
programmes through face-to-face presentations, video conferencing and
online/desktop software. This online safety education commonly covers issues such as
cyber-bullying, keeping personal information private and how to stay safe online.
However, there is no standard of quality that these programmes and its provider must
meet in order to be delivered in schools. Decision makers have no guidance in
assessing the appropriateness and effectiveness of programmes about online safety
offered in the market. As a result, programmes may deliver inaccurate information or
ineffective advice and may not raise awareness of the potential for cyber-bullying to
be considered a criminal offence under existing laws.
Maintaining the status quo, ad-hoc approach to online safety education will mean that
Australian children, their parents and carers may receive programmes that are of
inadequate quality to properly address the harmful effects of cyberbullying.
87
http://www.communications.gov.au/publications/publications/cyber-bullying
57
b. Voluntary certification process
In the policy to Enhance Online Safety for Children, the Government committed to
establishing a voluntary process for the certification of programmes about online
safety that are offered in schools.
The voluntary process will certify providers (rather than individual programmes) to
minimise the burden on industry. This will also allow providers more flexibility to
update their programme content without having to reapply frequently for certification.
Additionally, the $7.5 million grants funding programme will require that schools can
only engage programmes about online safety from certified providers. By linking the
two initiatives, schools that receive funding under the grants programme will be able
to make more informed decisions regarding the online safety education delivered in
their school community.
The voluntary certification process will focus on the ability of providers to deliver
appropriate and effective online safety programmes with some limited criteria
regarding programme content. This light touch approach will help schools identify the
providers that are already providing high quality programmes to schools, as a by-
product, some providers may update their programmes so they can be considered for
certification.
Consultation will be undertaken with education authorities and industry to ensure that
the certification guidelines meet the needs of education authorities and schools,
without introducing unnecessary burden on programme providers.
The Commissioner will also undertake information campaigns targeted at education
authorities and schools to communicate the benefits of purchasing programmes from
certified providers. The specifics of the voluntary certification programme will be a
matter for the Commissioner.
Impacts on stakeholders
The application of Voluntary Certification and assistance with the provision of online
safety education programmes in Australian schools will assist in securing efficiencies
in the choice of programmes to schools and teachers. It should have the consequential
effect of reducing the incidence of cyber-bullying in schools. There will be minor
additional costs for education providers participating in the certification process.
What is the likely net benefit of each option?
The costs and benefits of each option will be assessed in a similar manner as to the
assessment for options in Appendices D and E.
a. Status quo
Maintaining the status quo is the least resource intensive option. However, the wide
range of providers and their programmes about online safety can make it difficult for
schools to determine which providers offer effective programmes to help their school
community respond to cyber-bullying.
The Government has made an election commitment to do more to protect children
online and to increase the support provided to teachers so they are better equipped to
manage the online activity of children in their care.
58
General instances Exposure to Further
material behaviours
Harm* 5 5 5
Regulatory cost Low (compared to other options) - no new regulation
*Harm - (1 = significant increase; 5 = no change; 10 = significant decrease/no more
instances, exposure, or further behaviours).
b. Voluntary certification process
This option would affect programme providers from a range of different sectors
including, industry, community organisations and government.
Participation in the process would be optional for industry and those providers who
choose to participate would not be subject to onerous administrative requirements.
Applicants would incur costs in applying for certification and complying with any
limited reporting requirements under the process.
The Department has consulted with stakeholders on the assumptions underpinning the
regulatory costing of this option. Further detail on the feedback received is outlined at
Appendix G. In estimating the regulatory impact on industry of participating in a
voluntary certification process, the Department has assumed that 10 online safety
programme providers currently providing programmes in primary schools will apply
for certification. Each provider will allocate 35.5hrs in the first year (9.0hrs in each
successive year) to the following activities:
Familiarisation with certification guidelines
Preparation of certification application documents and completion of an
application form
Completion of a certification agreement with the Commissioner
Cost of undertaking or updating police and working with children checks
Changes to current training product including: adding certification branding to
programme website and promotional material; communicating changes to current
users; and updating any software product
Establishing a contact person for the Commissioner to engage with, and
Providing an annual statement to the Commissioner concerning compliance with
the certification agreement.
This option would deliver increased social benefits by allowing schools that choose
programmes from providers that have been evaluated as effective for increasing
participants` capacity for preventing, managing and reporting cyber-bullying and
other harmful content.
59
General instances Exposure to Further
material behaviours
Harm* 7 7 7
Regulatory cost Low/medium (compared to other option) - there would be
costs involved with organisations applying for voluntary
certification from the Commissioner and complying with
any limited reporting requirements under the process.
However participation in the process would be optional for
industry and those providers who choose to participate.
*Harm - (1 = significant increase; 5 = no change; 10 = significant decrease/no more
instances, exposure, or further behaviours).
Of the options identified above, option (b) is considered to have the highest net
benefit on the basis that, while it would involve slightly higher costs for participants,
such costs would be voluntary, and the certification of providers of programmes
would lead to a higher reduction in harm from cyber-bullying material in comparison
to option (a).
This is summarised in the table below. The preferred option is highlighted.
Option Harm from Harm from Harm from Regulatory
number of exposure to further cost
general material* behaviours*
instances*
Status quo 5 5 5 Low
Voluntary 7 7 7 Low/medium
certification
*Harm - (1 = significant increase; 5 = no change; 10 = significant decrease/no more
instances, exposure, or further behaviours).
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Appendix G
Stakeholder Feedback
This appendix summarises stakeholder`s views on the draft Regulatory Impact
Statement. For the purposes of confidentiality, commentary and responses referred to
below have been de-identified.
What views were expressed by stakeholders?
Stakeholders provided a range of comments in relation to the draft RIS. Stakeholders
were generally supportive of the policy proposal outlined, acknowledging the
considerable work which has been undertaken by the Government in advancing the
election commitment to establish a Children`s e-Safety Commissioner and implement
a legislatively backed complaints system.
Stakeholders also noted that they were pleased to see that many of their
recommendations from the public consultation phase had been incorporated into the
draft legislation.
Some concerns were noted by government stakeholders that there is a lack of research
around how or why children engage in suicidal behaviour and self-harm and
accordingly the establishment of the Commissioner should not be presented as the
main means to either combat bullying or address intentional self-harm or suicidal
behaviours among children. In this regard, note that the preferred option combines a
number of measures which will work in parallel with existing initiatives currently
utilised by the States and Territories, non-profit organisations and social media
services.
Child welfare groups noted that there should be a greater focus on parental education.
These stakeholders suggest that more funding should be invested into areas of support
and education for parents. These comments will be taken into account as work on the
Voluntary Certification Process progresses.
Were assumptions validated by stakeholders?
The Department consulted with stakeholders on the assumptions underpinning the
regulatory costing for measures to enhance online safety for children.
In relation to the quality assurance of online safety programmes offered in schools,
existing programme providers generally supported the proposed policy and did not
object to the assumptions. One provider commented that the Voluntary Certification
Process (VCP) could duplicate the requirements for the Harm Prevention Charity
Status resulting in additional workload and cost for applicants. The Department will
have regard to this comment as work on the Voluntary Certification Process
progresses, however on an initial view the Harm Prevention Charities Register is
heavily focused on charities and their access to taxation benefits and may have limited
use for the certification process. An existing program provider also commented that in
finalising any guidelines for certification, consideration should be given to exceptions
to reporting requirements and updating of programs for registered not-for-profit
charities. This also will be considered as the guidelines are developed.
Significant feedback was received on the assumptions underpinning the costings for
the rapid removal scheme. Social media service stakeholders provided valuable input
on the time and resource requirements likely to be involved for social media services
61
under tier 1 of the preferred, two-tier scheme. However two claims by providers were
not supported.
The first of these is the premise that a rapid removal scheme may result in an increase
in the volume of reports being made to social media services. Social media sites have
advised that they invest heavily in reporting tools and encourage their users to report
any abuse, including bullying and harassment, directly to them. Given the extent of
investment in these tools and the promotion of these by sites, it is not clear that the
establishment of the Commissioner would result in any complaints being made that
are not already being raised with the sites. Further, social media sites have not
provided any evidence to back their claim that complaint volumes will increase. As a
result, it is not expected that there would be any costs flowing from a rise in
complaints, and if there was a rise, it would be expected to be relatively modest.
The second premise is that the ongoing maintenance and upkeep of complaints
handling systems in order to retain standing within tier 1 and avoid falling into tier 2
should be considered as compliance costs. This is not supported. Business as usual
costs are not considered as regulatory costs.
An industry stakeholder warned of the possible risk of unintended regulatory costs
caused should key definitions or requirements in the legislation lead to over capture`,
or in other words, if the legislation establishing the rapid removal scheme was worded
too broadly and in a way that affected stakeholders other than social media providers.
Key stakeholders have been consulted closely in developing the legislation to give
effect to the rapid removal scheme to minimise this risk.
A range of stakeholders raised the issue of possible regulatory costs should new data
access or information gathering regimes be required. No new regimes are being
proposed; it is envisaged that the Commissioner will be able to rely on similar powers
to those available to the ACMA.
An industry stakeholder noted that the net benefit assessment involves consideration
of the regulatory cost of relevant policy decisions.` This stakeholder advised that the
RIS provides a rationale for the policy focus on this issue and provides an accurate
account of the measures taken by the Government to comply with best practice policy
development processes.
Did stakeholders suggest any alternative policy approaches?
A number of stakeholders suggested alternative policy approaches.
Some stakeholders advised that an alternative option to the rapid removal scheme is to
provide additional resources to the Complaints Handling Protocol. This option has
been considered as part of the option to continue the status quo in Appendix D. This
option is not preferred, and is inconsistent with the Government`s election
commitment.
Government stakeholders also discussed the need for the RIS to reflect that a wide
spectrum of cyber-bullying behaviours exist which are not necessarily criminal in
nature and that only behaviour that is sufficiently serious is able to be dealt with by
police. Comments were also received around support for a framework which
minimises duplication of complaints handled by the Commissioner, including those
arising through the Australian Cybercrime Online Reporting Network.
62
As noted above, some online safety programme providers noted that another option
includes a greater focus on parental education.
Is the preferred option generally supported?
Overall, the preferred option was generally supported by stakeholders and this was
reflected in the submissions received in response to the consultation process. There
were a small number of suggested amendments including commentary from an
industry stakeholder who submitted that the RIS provides a rationale for the policy
focus on the issue of cyber-bullying, and an accurate account of the measures taken
by the Government to comply with best practice policy development processes. That
stakeholder recommended that the legislation be clearly and unambiguously
expressed in order to minimise the risk of over capture` and unintended
consequences on industry and individuals`.
It should be noted that social media services have publicly expressed the view that
there is no need for new regulation in relation to cyber-bullying material on their
services as they already have in place significant resources and systems in place to
deal with this type of material. This is acknowledged, and recognised in the
Government`s preferred option to introduce a two-tier system where regulatory
compliance will only be mandatory for large social media services which do not have
well-established and robust complaints handling procedures and systems.
Overall, stakeholders support the Government`s initiatives to enhance online safety
for children, and in the context of the RIS, would agree that those initiatives could be
expected to have a net benefit.
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Appendix H
Regulatory burden and cost offset estimate
Average Annual Regulatory Costs (from Business as usual)
Change in costs Business Community Individuals Total
($million) Organisations change
in cost
Total by Sector $0.432 $0 $0 $0.432
Cost offset Business Community Individuals Total by
($million) Organisations Source
Agency ($21.77) $0 $0 $(21.77)
Are all new costs offset?
yes, costs are offset no, costs are not offset deregulatory, no offsets required
Total (Change in costs - Cost offset) ($million) ($21.34)
The regulatory cost offsets noted in the above table have been identified within the
Communications portfolio. These cost offsets relate to the Identity Checks for Prepaid
Mobile Services reforms.
64
ABBREVIATIONS
The following abbreviations are used in this explanatory memorandum:
ACMA Australian Communications and Media Authority
ACMA Act Australian Communications and Media Authority Act
2005
BSA Broadcasting Services Act 1992
Commissioner Children`s e-Safety Commissioner
Consequential Amendments Enhancing Online Safety for Children (Consequential
Bill Amendments) Bill 2014
Criminal Code Criminal Code Act 1995
FCC Federal Circuit Court of Australia
FOI Act Freedom of Information Act 1982
Online Safety Bill Enhancing Online Safety for Children Bill 2014
Regulatory Powers Act Regulatory Powers (Standard Provisions) Act 2014
Special Account Children`s Online Safety Special Account
Telecommunications Act Telecommunications Act 1997
Telecommunications Telecommunications Legislation Amendment
Deregulation Act (Deregulation) Act 2014
65
NOTES ON CLAUSES
ENHANCING ONLINE SAFETY FOR CHILDREN BILL 2014
Part 1--Preliminary
Part 1 of the Online Safety Bill deals with preliminary matters.
Clause 1 - Short title
Clause 1 provides that the Online Safety Bill, when enacted, may be cited as the
Enhancing Online Safety for Children Act 2014.
Clause 2 - Commencement
Clause 2 provides for the commencement of the Online Safety Bill.
Clauses 1 and 2 of the Online Safety Bill, and anything else not covered in the table at
subclause (1), will commence on the day of Royal Assent. Clauses 3 to 108 will
commence on a single day to be fixed by Proclamation. However, if the provisions do
not commence within the period of 6 months beginning on the day of Royal Assent,
they commence on the day after the end of that period.
Clause 3 - Simplified outline of this Act
Clause 3 is a simplified outline of the Online Safety Bill. This simplified outline is
included to assist readers to understand the substantive provisions of the Online
Safety Bill. However, the outline is not intended to be comprehensive. It is intended
that readers should rely on the substantive provisions of the Online Safety Bill.
Clause 4- Definitions
Clause 4 sets out definitions of terms and expressions that are used in the Online
Safety Bill. Definitions of particular note include:
basic online safety requirements (see clause 21)
cyber-bullying material targeted at an Australian child (see clause 5 below)
relevant electronic service, which means any of the electronic services listed in
the definition including an electronic service that enables end-users to
communicate with other end-users by email, instant messaging, short message
service (SMS), multimedia message service (MMS), or a chat service or a service
that enables end-users to play online games. The definition also includes any
electronic service that is specified in legislative rules made by the Minister. The
definition of relevant electronic service is relevant to the Commissioner`s power
to give an end-user notice under Part 5 in relation to material provided on a social
media service or a relevant electronic service
social media service (see clause 9)
social media service notice, which means a notice given by the Commissioner to
the provider of a social media service under subclause 35(1) requiring the
provider to remove certain material from the service.
66
Other definitional and interpretive provisions are contained in clauses 5, 6, 7, 8, 9, 21,
105 and 106.
Clause 5 - Cyber-bullying material targeted at an Australian child
This clause sets out the criteria for determining whether material submitted as part of
a complaint to the Commissioner under clause 18 is cyber-bullying material targeted
at an Australian child`. This test is also used to determine when the Commissioner
may:
request the provider of a tier 1 social media service to remove material from the
service (clause 29);
give a social media service notice to the provider of a tier 2 social media service
(clause 35); or
give an end-user notice to an end-user of a social media service or relevant
electronic service (clause 42).
Subclause (1) applies an objective test in paragraph (b) to determine whether an
ordinary reasonable person would conclude that it is likely that the material was
intended to have an effect on a particular Australian child, and that the material would
be likely to have the effect on the Australian child of seriously threatening, seriously
intimidating, seriously harassing or seriously humiliating the Australian child. For the
purposes of subclause (1), threatening`, intimidating`, harassing` and humiliating`
are intended to have their ordinary meaning.
If all the conditions in paragraphs (a) to (c) are satisfied, then subclause (1) provides
that the material in question is cyber-bullying material targeted at the Australian
child` and the Australian child is the target of the material. The requirement that the
material was intended to have an effect on the Australian child` in
subparagraph (b)(i), is designed to exclude material of a general nature, such as
material targeted at a broad class of people.
Paragraph (c) enables other conditions to be included in the test of cyber-bullying
material targeted at an Australian child` by the legislative rules (see clause 108)
should it become apparent during the course of administering the legislation, that
further conditions should be specified.
Subclause (2) provides that an effect mentioned in subclause (1) may be a direct result
of material being accessed by, or delivered to, the Australian child or an indirect result
of the material being access by, or delivered to, one or more other persons. This
subclause is intended to capture indirect effects of cyber-bullying material which are
not directly accessed by the Australian child, but which still have an effect on the
child, for example, by material being accessed by, or delivered to, other children in
the child`s class at school.
Subclause (3) limits the effect of subclause (1) to the extent that subclause (4) applies.
Subclause (4) provides an exception to subclause (1) for material posted by persons
who are in a position of authority over an Australian child, so as not to interfere with
reasonable action taken in a reasonable manner by authority figures. Reasonable
action taken in a reasonable manner by authority figures such as parents, teachers and
employers could include matters such as notifying the child by email of exam results
or dismissal from employment. Such matters should not be treated as cyber-bullying.
67
Clause 6 - When material is provided on a social media service or relevant
electronic service
Clause 6 stipulates that material is taken to be provided` on a social media service or
relevant electronic service if the material is accessible to, or delivered to, one or more
of the end-users using the service.
Clause 7 - When material is posted by an end-user of a social media service or
relevant electronic service
Clause 7 stipulates that material is taken to be posted` on a social media service or
relevant electronic service by an end-user if the end-user causes the material to be
accessible to, or delivered to, one or more other end-users using the service.
Clause 8 - When material is removed from a social media service or relevant
electronic service
Clause 8 stipulates that material is removed` from a social media service or relevant
electronic service if the material is neither accessible to, nor delivered to, any of the
end-users in Australia using the service.
For this purpose, it is intended that if specifically identified material is removed, the
material is taken to be removed even if a copy of the same material, within the control
of another end-user, is accessible to, or delivered to, one or more other end-users
using the service. It would not be reasonable to expect social media services to
remove material that is not specifically identified to them.
Clause 9 - Social media service
Clause 9 defines the term social media service` for the purposes of the Online Safety
Bill.
Subclause (1) provides that a social media service` is an electronic service that
satisfies the conditions listed in paragraph (a), or is specified in the legislative rules,
but does not include an exempt service as defined by subclause (4) or (5).
The term electronic service` is defined in clause 4 of the Online Safety Bill as a
service that allows end-users to access material using a carriage service or a service
that delivers material by means of a carriage service. Carriage service` is defined in
the Telecommunications Act to mean a service for carrying communications by
means of guided or unguided electromagnetic energy. The definition of electronic
service specifically excludes broadcasting and datacasting services as defined in the
BSA.
Subparagraph 9(1)(a)(i) provides that to be a social media service, the sole or primary
purpose of the service must be to enable online social interaction between 2 or more
end-users. Subclause 9(1) includes a note making it clear that online social interaction
does not include, for example, online business interaction. For example, it is not
intended that subparagraph (a)(i) would capture online feedback facilities established
by businesses for the purposes of dealing with their customers. Neither is it intended
that subparagraph (a)(i) would capture online games that have chat functionality
(where the primary purpose of such a service would be to play the game).
Subparagraphs (1)(a)(ii), (iii) and (iv) provide that to be a social media service, the
electronic service must allow end-users to link to, or interact with, some or all of the
68
other end-users, allow end-users to post material on the service and satisfy such other
conditions as are set out in legislative rules.
Subclause (2) clarifies that, in the sole or primary purpose of the service` test in
subparagraph (1)(a)(i), online social interaction includes online interaction that
enables end-users to share material for social purposes (which do not include business
purposes as clarified by the note).
Subclause (3) clarifies that, in determining whether the sole or primary purpose of
the service` test in subparagraph (1)(a)(i) is satisfied, the following purposes are to be
disregarded:
the provision of advertising material on the service;
the generation of revenue from the provision of advertising material on the
service.
Subclause (3) will ensure that services that would otherwise meet at least one of the
sets of conditions in subclause (1) do not fall outside of the social media service`
definition on the basis of an argument that the sole or primary purpose of such a
service is to sell advertising or generate revenue from advertising sales.
Exempt services
Subclause (4) and (5) provide for exempt services.
A service will be exempt from being a social media service` for the purposes of the
Online Safety Bill if:
none of the material on the service is accessible to, or delivered to, one or more
end-users in Australia (paragraph (4)(a));
the service is specified in the legislative rules (paragraph (4)(b)); or
the Commissioner has made a written declaration that an electronic service is an
exempt service for the purposes of clause 9 on the basis of being satisfied that:
- the service has controls on (i) who can access, or who can be delivered,
material provided on the service, or (ii) the material that can be posted on the
service; and
- those controls will be effective in achieving the result that none of the
material provided on the service could be cyber-bullying material targeted at
an Australian child (subclause (5)).
Subclause (6) provides that an instrument made under subclause (5), by which the
Commissioner can declare a particular social media service to be an exempt service`,
is not a legislative instrument. Subclause (6) is declaratory of the law and is included
to assist readers rather than create an exception to the Legislative Instruments Act
2003.
Clause 10 - Crown to be bound
Clause 10 provides that the Online Safety Bill binds the Crown in each of its
capacities, displacing the common law presumption that the Crown is not bound by
statutes.
69
Clause 11 - Application of this Act
Subclause 11(1) provides that the Online Safety Bill extends to every external
Territory. The term external Territory` is defined in the Acts Interpretation Act 1901.
Subclause 11(2) provides that the Online Safety Bill extends to acts, omissions,
matters and things outside Australia. The term Australia` is defined in clause 4. This
provision displaces the common law presumption that statutes do not apply
extraterritorially.
Clause 12 - Convention on the Rights of the Child
Clause 12 provides that the Commissioner must, as appropriate, have regard to the
Convention on the Rights of the Child in the performance of functions (see clause 15)
conferred by or under the Online Safety Bill. Subclause (2) confirms that subclause
(1) does not limit the matters to which the Commissioner may have regard.
Part 2--Children's e-Safety Commissioner
Part 2 of the Online Safety Bill deals with the establishment of the Commissioner and
sets out the Commissioner`s powers and functions. Part 7 of the Online Safety Bill
deals with administrative provisions relating to the Commissioner.
Clause 13 - Simplified outline of this Part
Clause 13 is a simplified outline of Part 2 of the Online Safety Bill. This simplified
outline is included to assist readers to understand the substantive provisions of Part 2.
However, the outline is not intended to be comprehensive. It is intended that readers
should rely on the substantive provisions of Part 2.
Clause 14 - Children's e-Safety Commissioner
Clause 14 establishes the statutory office of the Children`s e-Safety Commissioner.
The note to clause 14 indicates that, in the Online Safety Bill, Commissioner` refers
to the Children`s e-Safety Commissioner, which is a term defined in clause 4 of the
Online Safety Bill. The same abbreviation is used in this explanatory memorandum.
Clause 15 - Functions of the Commissioner
Subclause 15(1) sets out the functions of the Commissioner.
Key functions include:
the functions conferred by the Online Safety Bill, Schedules 5 and 7 to the BSA,
or any other Commonwealth law (paragraph (a))
to promote online safety for children (paragraph (b));
to coordinate activities of Commonwealth Departments, authorities and agencies
relating to online safety for children (paragraph (d));
to disseminate information relating to online safety for children (paragraph (e));
to support, conduct and evaluate educational and community awareness programs
relevant to online safety for children (paragraph (f));
to make grants of financial assistance relating to online safety for children
(paragraph (g));
70
to conduct research about online safety for children (paragraph (h));
to give the Minister reports and advise about online safety for children
(paragraphs (j) and (k));
to formulate and promote best practice guidelines and statements for persons and
bodies involved in online safety for children (paragraphs (p) and (q)).
Subclauses (2) to (4) relate to grants of financial assistance in relation to online safety
for children that the Commissioner may make on behalf of the Commonwealth under
paragraph (1)(g). The terms and conditions on which financial assistance is granted
under paragraph (1)(g) are to be set out in a written agreement between the
Commonwealth and the grant recipient.
Subclause (5) clarifies that guidelines and statements formulated under paragraph
(1)(p) are not legislative instruments. Subclause (5) is declaratory of the law and is
included to assist readers rather than create an exception to the Legislative
Instruments Act 2003.
In performing his or her functions under clause 15, the Commissioner will be
expected to balance the rights and responsibilities of all stakeholders with the need to
take proportionate and appropriate action in the best interests of children.
Clause 16 - Powers of the Commissioner
Clause 16 provides that the Commissioner has the power to do all things necessary or
convenient to be done for or in connection with the performance of his or her
functions. Supplementary powers of the Commissioner with respect to entering into
contracts, holding property and receiving money are set out at clause 60.
Part 3--Complaints about cyber-bullying material
Part 3 of the Online Safety Bill provides for a complaints system for cyber-bullying
material targeted at an Australian child.
Clause 17 - Simplified outline of this Part
Clause 17 is a simplified outline of Part 3 of the Online Safety Bill. This simplified
outline is included to assist readers to understand the substantive provisions of Part 3.
However, the outline is not intended to be comprehensive. It is intended that readers
should rely on the substantive provisions of Part 3.
Clause 18 - Complaints about cyber-bullying material
Clause 18 of the Online Safety Bill sets out who can make a complaint about
cyber-bullying material and the grounds on which a complaint may be made.
Cyber-bullying material targeted at an Australian child`, social media service`,
provided` and relevant electronic service` are defined terms for the purposes of the
Online Safety Bill (see clause 4).
Subclause (1) provides that an Australian child may make a complaint to the
Commissioner if the child has reason to believe that he or she was or is the target of
cyber-bullying material that has been, or is being, provided on a particular social
media service or relevant electronic service.
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Subclause (2) enables a responsible person` to make a complaint to the
Commissioner on behalf of an Australian child if the person has reason to believe that
cyber-bullying material targeted at an Australian child has been, or is being, provided
on a particular social media service or relevant electronic service. For the purposes of
subclause (2), a responsible person` is a parent or guardian of the child or a person
who the child has authorised to make a complaint on his or her behalf.
There may be circumstances under subclause (2) where a parent or guardian makes a
complaint to the Commissioner against the wishes of the child. In such cases, it would
be expected that the Commissioner would consider the child`s views, consistent with
the child`s age and maturity, in deciding whether or not to exercise his or her
discretion to investigate the complaint under clause 19.
Subclause (3) provides an extension of time for an adult who was an Australian child
to make a complaint to the Commissioner, provided that the complaint is made within
a reasonable time after the person became aware of the matter and the complaint is
made within 6 months after the person reached 18 years. Such a person may make a
complaint to the Commissioner if the person has reason to believe that, when he or
she was an Australian child, he or she was the target of cyber-bullying material that
was provided on a particular social media service or relevant electronic service.
Evidence requirements - complaints about material provided on social media services
If a complaint made by a person to the Commissioner under clause 18 concerns
material that has been, or is being, provided on:
a tier 1 social media service (see Division 2 of Part 4 of the Online Safety Bill)
and the person wants the Commissioner to give the provider of the service a
notice under clause 29 requesting the provider to remove the material from the
service; or
a tier 2 social media service (see Division 3 of Part 4 of the Online Safety Bill)
and the person wants the Commissioner to give the provider of the service a
social media service notice under clause 35 requiring the provider to remove the
material from the service;
the complaint made under clause 18 must be accompanied by evidence that the
material was the subject of a complaint that was previously made under the service`s
complaint scheme (see subclause (4) and (5)).
Subclause (6) provides that, for the purposes of subclauses (4) and (5), evidence must
be in a form required by the Commissioner. Subclauses (7) and (8) provide that the
Commissioner may require evidence to be in the form of a receipt, complaint number,
screen shot, statutory declaration, or another specified form in certain circumstances.
However, subclauses (7) and (8) do not limit subclause (6) (see subclause (9)).
Subclause (10) provides that a requirement under subclauses (6), (7) or (8) is not a
legislative instrument. Subclause (10) is declaratory of the law and is included to
assist readers rather than create an exception to the Legislative Instruments Act 2003.
Clause 19 - Investigation of complaints
Subclause 19(1) provides that the Commissioner may investigate a complaint made
under clause 18. The Commissioner is not required to investigate all complaints made
under clause 18 and may use his or her discretion in deciding whether or not to
investigate any particular complaint.
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In some cases, the Commissioner might decline to investigate a complaint under
clause 18, and instead refer the matter to a law enforcement agency in accordance
with clause 92, if the Commissioner is satisfied that the material is of a sufficiently
serious nature to warrant referral to a law enforcement agency in accordance with that
clause.
A decision not to investigate a complaint is not reviewable under the Online Safety
Bill (clause 88 deals with review of decisions under the Online Safety 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.
The Commissioner may choose to not investigate certain other types of complaints,
for example, complaints which are frivolous or vexatious or complaints which may be
best resolved by the relevant school.
Subclauses 19(2) and (3) provide that an investigation under this clause is to be
conducted as the Commissioner thinks fit, and that the Commissioner may, for the
purposes of an investigation, obtain information from such persons, and make such
inquiries, as he or she thinks fit. It is expected that the Commissioner will develop
appropriate procedures for the acceptance, investigation and closing of complaints.
Subclause (4) provides that subclauses (1) to (3) have effect subject to Part 13 of the
BSA (Part 13 of the BSA, as proposed to be amended by the Consequential
Amendments Bill, confers certain investigative powers on the Commissioner).
Subclause (5) provides that the Commissioner may terminate an investigation made
under clause 19. For example, the Commissioner might decide to terminate an
investigation where the matter is of a criminal nature and would be better dealt with
by police.
Part 4--Social media services
Part 4 of the Online Safety Bill deals with the treatment of cyber-bullying material on
social media services.
Division 1--Introduction
Division 1 of Part 4 of the Online Safety Bill deals with introductory material relating
to Part 4, including basic online safety requirements and Parliament`s expectations.
Clause 20 - Simplified outline of this Part
Clause 20 is a simplified outline of Part 4 of the Online Safety Bill. This simplified
outline is included to assist readers to understand the substantive provisions of
Division 1 of Part 4. However, the outline is not intended to be comprehensive. It is
intended that readers should rely on the substantive provisions of Part 4.
Clause 21 - Basic online safety requirements
Clause 21 outlines the basic online safety requirements which apply to social media
services and are referred to in the statement of Parliamentary expectations set out in
clause 22 below. Subclause 21(2) notes that cyber-bullying material has its ordinary
meaning for the purposes of clause 21.
To meet the basic online safety requirements, a social media service must:
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have terms of use that prohibit end-users from posting cyber-bullying material on
the service (clause 104 of the Online Safety Bill clarifies what may be regarded
as the equivalent of provisions prohibiting end-users from posting cyber-bullying
material on the service) (paragraph 21(1)(a));
have a complaints scheme under which end-users can request removal of
cyber-bullying material (paragraph 21(1)(b)); and
have a designated contact person for the purposes of the Online Safety Bill
(paragraph 21(1)(c)) whose contact details are notified to the Commissioner
(paragraph 21(1)(d)).
Compliance with the basic online safety requirements is a prerequisite for the
Commissioner to declare a social media service to be a tier 1 social media service`
under clause 23 and is a factor to which the Commissioner must have regard in
deciding whether to make a recommendation under subclause 31(1) that the Minister
declare a specified service to be a tier 2 social media service`.
If the Commissioner is satisfied that a social media service does not comply with the
basic online safety requirements, the Commissioner may publish a statement to that
effect under clause 38.
Clause 22 - Statement of Parliamentary expectations
Clause 22 outlines Parliament`s expectations for social media services and the
Commissioner.
Subclause (1) establishes Parliament`s expectation that social media services will
comply with the basic online safety requirements.
Subclause (2) establishes Parliament`s expectation that the Commissioner, as far as
practicable, should communicate the expectation in subclause (1) to providers of
social media services.
Subclause (3) makes it clear that subclauses (1) and (2) do not impose a duty
enforceable in a court.
Division 2--Tier 1 social media services
Division 2 of Part 4 deals with tier 1 social media services.
Subdivision A--Declaration of tier 1 social media service
Subdivision A of Division 2 of Part 4 deals with declarations of tier 1 social media
services.
Clause 23 - Declaration of tier 1 social media service
Clause 23 establishes the grounds and processes by which a social media service may
apply to the Commissioner for declaration as a tier 1 social media service. The clause
also outlines the circumstances in which the Commissioner must declare a social
media service to be a tier 1 social media service.
Subclause (1) enables a social media service to apply to the Commissioner for
declaration as a tier 1 social media service. Subclause (2) imposes form requirements
for an application made under subclause (1). Subclause (3) creates an option for a
service making an application under subclause (1) to elect to receive requests for
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removal of cyber-bullying material under clause 29 in accordance with the special
rule` under subclause 29(2) (by which the Commissioner must consider whether
material breaches relevant provisions in the service`s terms of use), rather than the
default rule` under subclause 29(1).
Subclause (4) establishes the circumstances in which the Commissioner is required to
grant a social media service tier 1 status.
Subclause (5) establishes the circumstances in which the Commissioner must not
declare a social media service a tier 1 social media service. In accordance with
paragraph (d), the Commissioner must give notice of the refusal to the applicant in
writing. An application may be made to the Administrative Appeals Tribunal, by the
provider of the social media service concerned, for review of a decision of the
Commissioner to refuse to make a declaration in relation to a social media service
under subclause 23(5) (subclause 88(1) refers).
Subclause (6) confirms that a declaration made under subclause (4) is not a legislative
instrument for the purposes of the Online Safety Bill. Subclause (6) is declaratory of
the law and is intended to assist readers.
Clause 24 - Variation of declaration of tier 1 social media service--change of
name
Clause 24 allows the Commissioner to vary a declaration made under subclause 23(4)
in certain circumstances.
Subclause (1) gives the Commissioner power to vary a declaration by writing where a
social media service changes its name.
Subclause (2) requires the Commissioner to notify the provider of the social media
service in writing of any such variation.
Subclause (3) confirms that a variation made under subclause (1) is not a legislative
instrument. Subclause (3) is declaratory of the law and is intended to assist readers.
Clause 25 - Revocation of declaration of social media service as a tier 1 social
media service
Clause 25 allows the Commissioner to revoke a declaration of a tier 1 social media
service on specific grounds.
Subclause (1) gives the Commissioner the power to revoke a declaration of a tier 1
social media service, made under clause 23, where at least 12 months have passed
since the declaration was made (subparagraph (a)(i)) and where during the preceding
12 months the provider has repeatedly failed to comply with requests for removal of
cyber-bullying material under clause 29 (subparagraph (a)(ii)). The word repeatedly`
in this clause is intended to have its ordinary meaning. The Commissioner may also
revoke a declaration of a tier 1 social media service, made under clause 23, where the
Commissioner is satisfied that the service does not comply with the basic online
safety requirements (paragraph (b)). An application may be made to the
Administrative Appeals Tribunal, by the provider of the social media service
concerned, for review of a decision of the Commissioner to revoke a declaration
under clause 25 (subclause 88(1) refers).
Subclause (2) provides that the Commissioner must give written notice of any
revocation made under subclause (1) to the provider of the service.
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Subclause (3) restricts a provider of a social media service who has had a declaration
of a tier 1 social media service revoked from reapplying for a declaration under clause
23(1), for a period of 28 days after the day the declaration was revoked. This is
intended to provide the Commissioner with sufficient time to consider whether to
recommend to the Minister that the service be declared under tier 2.
Subclause (4) confirms that a revocation made under clause 25(1) is not a legislative
instrument for the purposes of the Online Safety Bill. Subclause (4) is declaratory of
the law and is intended to assist readers.
Clause 26 - Notification of changes to terms of use of tier 1 social media service
Clause 26 creates obligations for providers of a tier 1 social media service to notify
the Commissioner of changes to its terms of use in certain circumstances. If a change
to the terms of use occurs and the change could affect cyber-bullying material, the
provider of the service must give the Commissioner written notice of the change
within 14 days after the change was made. Notice of the change may be given
electronically. Subclause 26(2) states that for the purposes of clause 26,
cyber-bullying material has its ordinary meaning.
Clause 27 - Notification of change of contact person etc.
Clause 27 creates obligations for providers of tier 1 social media services to notify the
Commissioner of any changes to the identity or contact details of the individual
designated as the service`s contact person. Notice of change must be given to the
Commissioner in writing within 14 days after the change occurs. Notice of the change
may be given electronically.
Clause 28 - Register of Tier 1 Social Media Services
Clause 28 outlines the Commissioner`s obligations to maintain an electronic register
of tier 1 social media services, to be made available on the Commissioner`s website.
Subclause 28(4) clarifies that the register is not a legislative instrument, and is
declaratory of the law.
Subdivision B--Request for removal of cyber-bullying material
Clause 29 - Request for removal of cyber-bullying material
Clause 29 sets out the circumstances in which the Commissioner may request a tier 1
social media service provider to remove cyber-bullying material targeted at an
Australian child from its service. Clause 29 sets out two rules (the default rule` and
the special rule`) which provide options for social media services in being given
requests to remove content from services. In considering complaints in accordance
with the special rule`, the Commissioner must consider whether the material
requested to be removed from the social media service breaches the cyber-bullying
provision in the service`s terms of use. The default rule` requires the Commissioner
to consider the statutory test at clause 5 in determining whether content on the service
is cyber-bullying material. Social media service providers may elect, in their
application to the Commissioner for declaration as a tier 1 service, to apply the special
rule (subclause 23(3) refers), otherwise the default rule will apply.
A written notice provided by the Commissioner under either subclause 29(1) or (2)
may request the provider to remove specified material, the subject of the complaint,
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from the service within 48 hours. A removal notice does not impose an ongoing
obligation for a social media service to keep removed material from the service, if the
material is reposted by an end-user. In such instances, a further complaint would need
to be made to the service.
Subclause 29(3) relates to circumstances where a social media service provider elects,
through a statement covered by subclause 23(3), for the Commissioner to use the
special rule` in requesting the removal of content. Subclause 29(3) provides that if
the service does not have a provision which prohibits the posting of cyber-bullying
material, or an equivalent provision, then the subclause 23(3) statement in the
provider`s application for tier 1 status may be disregarded, with the effect that the
default rule` would be used by the Commissioner in requesting the removal of
content.
For the purposes of paragraphs (2)(b) and (3)(b), subclause (4) clarifies that
cyber-bullying material has its ordinary meaning.
Division 3--Tier 2 social media services
Division 3 of Part 4 deals with tier 2 social media services.
Subdivision A--Declaration of tier 2 social media service
Subdivision A of Division 3 of Part 4 deals with declarations of tier 2 social media
services.
Clause 30 - Declaration of tier 2 social media service
Clause 30 enables the Minister to declare, by legislative instrument, that a specified
social media service is a tier 2 social media service` for the purposes of the Online
Safety Bill. Subclause (2) prohibits the Minister from declaring a tier 2 social media
service unless the Commissioner has made a recommendation under clause 31 that the
Minister declare the service.
Clause 31 - Recommendation about declaration of a tier 2 social media service
Clause 31 enables the Commissioner to recommend that the Minister declare a
specified social media service to be a tier 2 social media service under subclause
30(1) of the Online Safety Bill. Subclauses 31(2) to (7) specify criteria that the
Commissioner must apply before making any recommendation under subclause 31(1).
The Commissioner must not make such a recommendation in relation to a service that
is a tier 1 social media service (subclause 31(2)). The Commissioner also must not
make such a recommendation to the Minister unless the Commissioner is satisfied the
service is a large social media service`, having regard to factors in subclause 31(8),
or the provider of the social media service has requested the Commissioner to make
the recommendation.
Furthermore, the Commissioner must also give adequate opportunity, in accordance
with subclause (4), for the provider of a social media service which has never had tier
1 status to apply for tier 1 status before making a recommendation to the Minister
under subclause (1) with respect to tier 2 status.
Subclause (5) sets out a range of factors which the Commissioner must consider
before making a recommendation under subclause 31(1). These factors include:
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whether the service complies with the basic online safety requirements, described
at clause 21 above - a failure to comply would strengthen the case for tier 2
declaration;
whether the provider of the service has failed to make an application under
subclause 23(1) for a declaration of the service as tier 1 social media service - a
failure to apply for tier1 status when given the opportunity would strengthen the
case for tier 2 declaration ;
whether a subclause 23(4) declaration (as a tier 1 social media service) relating to
the service has been revoked under clause 25 - such a revocation would
strengthen the case for tier 2 declaration; and
such other matters (if any) as the Commissioner considers relevant.
In determining whether a social media service is a large social media service, for the
purposes of subclause 31(3), the Commissioner must under subclause 31(8) have
regard to the number of accounts held by end-users who are (i) ordinarily resident in
Australia; and (ii) Australian children. The relevant social media service may not have
this information available or may not make it available to the Commissioner.
Accordingly, the Commissioner may make reasonable assumptions and estimates
(subclause (9)). Under subclause 31(10), the Commissioner may publish a statement
on the Commissioner`s website explaining the Commissioner`s approach to
administering subclauses 31(8) and (9).
Subclause 31(11) provides that such a statement is not a legislative instrument. A
statement published under subclause 31(10) is not a legislative instrument within the
meaning of section 5 of the Legislative Instruments Act 2003 and so the statement
does not represent a substantive exemption from the requirements of that Act.
Clause 32 - Variation of declaration of tier 2 social media service--change of
name
Clause 32 allows the Minister, by legislative instrument, to vary a tier 2 declaration in
force under subclause 30(1) in circumstances where the service has changed its name.
Clause 33 - Revocation of declaration of social media service as a tier 2 social
media service
Clause 33 establishes the circumstances in which the Minister may revoke a
subclause 30(1) declaration in relation to a service`s status as a tier 2 social media
service For example, it is expected that revocation of tier 2 status would likely occur
where a provider of a tier 2 service has demonstrated a good record of compliance
with social media service notices from the Commissioner under clause 35, and has
indicated that it would prefer to work cooperatively under tier 1 of the scheme. The
Minister may only revoke a subclause 30(1) declaration where the service complies
with the basic online safety requirements set out in clause 21; where at least three
months have passed since the declaration was made; where the service has complied
with all (or nearly all) social media service notices given within the preceding three
months; and where the Commissioner has recommended revocation of the
declaration.
Subclause (2) provides that any revocation made under subclause (1) takes effect at
the end of the 28-day period which begins at the end of the day that the revocation
was made. If the provider of the service made an application during that 28-day
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period for declaration as a tier 1 social media service under subclause 23(1),
paragraph 23(4)(c) does not apply. Paragraph 23(4)(c) establishes the requirement for
a social media service to not be a tier 2 social media service when applying for a tier 1
declaration. This requirement would be inappropriate in the circumstances where a
revocation is made, but has not yet taken effect.
The cumulative effect of subclauses (1) to (3) is to ensure the smooth transition of
social media services from tier 2, to tier 1 in the specified circumstances.
Clause 34 - Register of Tier 2 Social Media Services
Clause 34 requires the Commissioner to maintain an electronic register of all tier 2
social media services, and to make the register available for inspection on the
Commissioner`s website. Subclause 34(4) clarifies that the register is not a legislative
instrument, and is declaratory of the law.
Subdivision B--Social media service notices
Subdivision B of Division 3 of Part 4 deals with requirements for social media service
notices.
Clause 35 - Social media service notice
Clause 35 establishes the grounds on which the Commissioner may give the provider
of a tier 2 social media service a social media service notice, requiring the provider to
remove the material which is subject of the complaint from the service within
48 hours after the receiving the notice.
The Commissioner may only give a social media service notice where the material
has been the subject of a complaint under the service`s complaints scheme and the
material was not removed within 48 hours (or such longer period as the
Commissioner allows), a complaint has been made to the Commissioner under clause
18 and the Commissioner is satisfied that the material is (or was) cyber-bullying
material targeted at an Australian child, within the meaning of clause 5.
The Commissioner may refuse to give a social media service notice but in those
circumstances must, under subclause 35(2), advise the complainant in writing of the
refusal to issue a social media service notice.
An application may be made to the Administrative Appeals Tribunal, by either the
provider of the social media service concerned or the end-user who posted the
material, for review of a decision of the Commissioner to give a social media service
notice under clause 35 (subclauses 88(3)-(4) refer).
An application to the Administrative Appeals Tribunal may also be made, by either a
person who made the complaint about cyber-bullying material under clause 18 or by
(or with the consent of) the person who was the target of the material, for review of a
decision of the Commissioner to refuse to give a social media service notice
(subclauses 88(5)-(6) refer).
Clause 36 - Compliance with social media service notice
Clause 36 provides that a person must comply with a requirement under a social
media service notice to the extent that they are capable of doing so. Breach of clause
36 is a civil penalty of 100 penalty units ($17,000).
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Civil penalty provisions in the Online Safety Bill are enforceable under Part 4 of the
Regulatory Powers Act, in accordance with subclause 46(1).
If a provider refuses to comply with a social media service notice, daily penalties for
contraventions of clause 36 apply under section 93 of Regulatory Powers Act.
Clause 37 - Formal warning
Clause 37 enables the Commissioner to issue a formal warning if a person
contravenes clause 36.
Division 4--Non-compliant social media services
Division 4 of Part 4 allows the Commissioner to prepare and publish written
statements where social media services do not comply with the basic online safety
requirements under clause 21, a request for removal of cyber-bullying material under
clause 29 or a social media service notice under clause 35.
Clause 38 - Non-compliance with the basic online safety requirements
Clause 38 gives the Commissioner the authority to prepare and publish a statement on
the Commissioner`s website that a social media service does not comply with the
basic online safety requirements.
Where a statement has been published under subclause (1), subclause (2) requires the
Commissioner to remove that statement from the Commissioner`s website when the
Commissioner is satisfied that the service does comply with the basic online safety
requirements.
Clause 39 - Non-compliance with a request for removal of cyber-bullying
material
Clause 39 gives the Commissioner the authority to prepare and publish a statement on
the Commissioner`s website that a tier 1 social media service has not complied with a
request for removal of cyber-bullying material under clause 29.
Clause 40 - Non-compliance with a social media service notice
Clause 40 gives the Commissioner the authority to prepare and publish a statement on
the Commissioner`s website that a tier 2 social media service has not complied with a
social media service notice.
Part 5--End-user notices
Part 5 deals with end-user notices that may be given to a person who posts
cyber-bullying material targeted at an Australian child.
Clause 41 - Simplified outline of this Part
Clause 41 is a simplified outline of Part 5 of the Online Safety Bill. This simplified
outline is included to assist readers to understand the substantive provisions of Part 5.
However, the outline is not intended to be comprehensive. It is intended that readers
should rely on the substantive provisions of Part 5.
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Clause 42 - End-user notice
Clause 42 enables the Commissioner to give a notice (an end-user notice) to a person
who posts cyber-bullying material targeted at an Australian child on a social media
service or relevant electronic service.
An end-user notice may require the end-user to take reasonable steps to remove the
material within a specified period, to refrain from posting any cyber-bullying material
for which the child is the target and/or to apologise to the subject for posting the
material (including in a specified manner and within a specified time). By focusing on
the end-user who posted the material, a notice under clause 42 is quite different from
a social media service notice under clause 35, which is directed at the provider of the
social media service.
Subclause (2) is a transitional provision which disapplies paragraph 42(1)(a) in
circumstances where the material considered for an end-user notice was posted before
the commencement of clause 42 unless it was provided on the service after the
commencement of clause 42. This allows material which is posted prior to the
enactment of clause 42 to nevertheless be considered by the Commissioner for the
purpose of an end-user notice if it remains posted, but prevents the legislation
operating retrospectively.
An application may be made to the Administrative Appeals Tribunal for review of a
decision of the Commissioner to give an end-user notice under clause 42
(subclause 88(7) refers).
Clause 43 - Compliance with end-user notice
Clause 43 requires a person to comply with a requirement under an end-user notice to
the extent that the person is capable of doing so. There may be instances where an
end-user is unable to prevent cyber-bullying continuing, such as where content has
been further disseminated by other parties. In such circumstances, the end-user can
only be held responsible for steps the person is capable of undertaking. Clause 43 is
enforceable under Part 7 of the Regulatory Powers Act which creates a framework for
using injunctions to enforce provisions (see clause 48).
Clause 44 - Formal warning
Clause 44 allows the Commissioner to issue a formal warning if a person contravenes
clause 43. In administering Part 5, the Commissioner can be expected to develop
appropriate policies and procedures, such as show cause notices` to ensure that
procedural fairness is afforded to end-users subject to notices in accordance with
standard administrative law requirements.
Part 6--Enforcement
Part 6 deals with enforcement provisions under the Online Safety Bill and applies the
civil penalty, enforceable undertaking and injunction frameworks in the Regulatory
Powers Act to the Online Safety Bill.
Clause 45 - Simplified outline of this Part
Clause 45 is a simplified outline of Part 6 of the Online Safety Bill. This simplified
outline is included to assist readers to understand the substantive provisions of Part 6.
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However, the outline is not intended to be comprehensive. It is intended that readers
should rely on the substantive provisions of Part 6.
Clause 46 - Civil penalty provision
Subclause 46(1) provides for the enforceability of civil penalty provisions in the
Online Safety Bill under Part 4 of the Regulatory Powers Act. Compliance with a
social media service notice is a civil penalty provision under clause 36 of the Online
Safety Bill. The note to subclause (1) provides that Part 4 of the Regulatory Powers
Act allows a civil penalty provision to be enforced by obtaining an order for a person
to pay a pecuniary penalty for the contravention of the provision.
Subclause (2) provides that, for the purposes of Part 4 of the Regulatory Powers Act,
the Commissioner is an authorised applicant in relation to a civil penalty provision in
the Online Safety Bill.
Subclause (3) provides that, for the purposes of Part 4 of the Regulatory Powers Act,
the Federal Circuit Court of Australia (FCC) is a relevant court in relation to a civil
penalty provision in the Online Safety Bill. While the FCC is nominated as a relevant
court for the purposes of Part 4 of the Regulatory Powers Act, matters in relation to a
civil penalty provision in the Online Safety Bill may be transferred from the FCC to
the Federal Court of Australia, where appropriate.
Subclause (4) extends the applicability of Part 4 of the Regulatory Powers Act in
relation to a civil penalty provision in the Online Safety Bill to every external
Territory and to acts, omissions, matters and things outside Australia.
Clause 47 - Enforceable undertakings
Subclause 47(1) provides that clause 36 of the Online Safety Bill (which is a civil
penalty provision in relation to compliance with social media service notices) is
enforceable under Part 6 of the Regulatory Powers Act. Part 6 of the Regulatory
Powers Act creates a framework for accepting and enforcing undertakings in relation
to compliance with provisions.
Subclause (2) provides that, for the purposes of Part 6 of the Regulatory Powers Act,
the Commissioner is an authorised person in relation to clause 36 of the Online Safety
Bill.
Subclause (3) provides that, for the purposes of Part 6 of the Regulatory Powers Act,
the FCC is a relevant court in relation to clause 36 of the Online Safety Bill. While the
FCC is nominated as a relevant court in relation to clause 36 of the Online Safety Bill
for the purposes of Part 6 of the Regulatory Powers Act, such matters may be
transferred from the FCC to the Federal Court of Australia, where appropriate.
Subclause (4) extends the applicability of Part 6 of the Regulatory Powers Act in
relation to clause 36 of the Online Safety Bill to every external Territory and to acts,
omissions, matters and things outside Australia.
Clause 48 - Injunctions
Subclause 48(1) provides that clauses 36 (compliance with social media service
notices) and 43 (compliance with end-user notices) are enforceable under Part 7 of the
Regulatory Powers Act. Part 7 of the Regulatory Powers Act creates a framework for
using injunctions to enforce provisions.
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Subclause (2) provides that, for the purposes of Part 7 of the Regulatory Powers Act,
the Commissioner is an authorised person in relation to clauses 36 and 43 of the
Online Safety Bill.
Subclause (3) provides that, for the purposes of Part 6 of the Regulatory Powers Act,
the FCC is a relevant court in relation to clauses 36 and 43 of the Online Safety Bill.
While the FCC is nominated as a relevant court in relation to clauses 36 and 43 of the
Online Safety Bill for the purposes of Part 7 of the Regulatory Powers Act, such
matters may be transferred from the FCC to the Federal Court of Australia, where
appropriate
Subclause (4) extends the applicability of Part 7 of the Regulatory Powers Act in
relation to clauses 36 and 43 of the Online Safety Bill to every external Territory and
to acts, omissions, matters and things outside Australia.
Part 7--Administrative provisions relating to the Commissioner
Part 7 deals with the administrative provisions relating to the Commissioner,
including appointment of the Commissioner, supplementary powers of the
Commissioner, obligations of the Commissioner and the ACMA`s obligation to assist
the Commissioner.
Division 1--Introduction
Division 1 of Part 7 sets out introductory provisions for Part 7.
Clause 49 - Simplified outline of this Part
Clause 49 is a simplified outline of Part 7 of the Online Safety Bill. This simplified
outline is included to assist readers to understand the substantive provisions of Part 7.
However, the outline is not intended to be comprehensive. It is intended that readers
should rely on the substantive provisions of Part 7.
Division 2--Appointment of the Commissioner
Division 2 of Part 7 sets out provisions related to the appointment of the
Commissioner.
Clause 50 - Appointment of the Commissioner
Subclause 50(1) provides that the Commissioner is to be appointed by the Minister by
written instrument.
Subclause 50(2) sets out the eligibility criteria for appointment as the Commissioner.
The Minister must be satisfied that a person has substantial experience or knowledge
and significant standing in at least one of the fields listed in paragraphs (c) to (f).
These include:
the operation of social media services;
the operation of the internet industry;
public engagement on issues relating to online safety;
public policy in relation to the communications sector.
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Subclause 50(3) provides that the Commissioner holds office on a full-time basis.
Clause 51 - Period of appointment for the Commissioner
Clause 51 provides that the Commissioner holds office for the period specified in the
instrument of appointment (see subclause 50(1)). This period must not exceed 5 years.
The note to clause 51 indicates that the Commissioner may be reappointed as per the
Acts Interpretation Act 1901.
Clause 52 - Acting appointments
Subclause 52(1) provides that the Minister may appoint a person to act as the
Commissioner when there is a vacancy in the office of the Commissioner, or during
any period where the Commissioner is absent from duty or Australia, or is unable to
perform the duties of the office.
The note to subclause (1) refers readers to the rules that apply to acting appointments
under section 33A of the Acts Interpretation Act 1901.
Subclause 52(2) provides that a person can only act as the Commissioner if he or she
meets the same eligibility requirements for appointment as the Commissioner (see
clause 50).
Division 3--Terms and conditions for the Commissioner
Division 3 provides the terms and conditions for the Commissioner`s appointment.
Clause 53 - Remuneration and allowances
Clause 53 sets out conditions in relation to remuneration and allowances applicable to
the Commissioner`s appointment.
Subclause (1) provides that the Commissioner`s remuneration is to be determined by
the Remuneration Tribunal. Where no determination by the Remuneration Tribunal is
in operation, the Commissioner is to be paid the remuneration that is prescribed by the
legislative rules.
Subclause (2) provides that the Commissioner is to be paid allowances prescribed by
the legislative rules.
Subclause (3) provides that clause 53 is subject to the Remuneration Tribunal Act
1973.
Clause 54 - Leave of absence
Subclause 54(1) provides that the Commissioner has entitlements to recreation leave
as determined by the Remuneration Tribunal.
Subclause 54(2) provides that the Minister may grant the Commissioner leave of
absence, other than recreational leave, on terms and conditions determined by the
Minister.
Clause 55 - Outside employment
Clause 55 prohibits the Commissioner from engaging in paid employment outside the
duties of his or her office without the Minister`s approval.
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Clause 56 - Disclosure of interests to the Minister
Clause 56 set outs the Commissioner`s disclosure of interest obligations.
Clause 57 - Resignation
Subclause 57(1) provides that the Commissioner may resign his or her appointment
by giving the Minister a written resignation.
Subclause 57(2) provides that the resignation will take effect on the date the Minister
receives the written resignation or on a later date specified in the resignation.
Clause 58 - Termination of appointment
Clause 58 provides the grounds on which the Minister may terminate the
Commissioner`s appointment.
Clause 59 - Other terms and conditions
Clause 59 provides that the Commissioner holds office subject to any further terms
and conditions not covered by the Online Safety Bill that are determined by the
Minister.
Division 4--Other matters
Clause 60 - Supplementary powers
Clause 60 sets out the supplementary powers of the Commissioner.
The Commissioner`s powers include the power to enter into contracts on behalf of the
Commonwealth (subclauses (1) and (2)).
Any property held by the Commissioner is held for and on behalf of the
Commonwealth (subclause (3)). Any money received by the Commissioner is
received for and on behalf of the Commonwealth (subclause (4)).
Subclause (5) prohibits the Commissioner from holding real or personal property, or
money, on trust for any person other than the Commonwealth. The note to subclause
(5) states that the Commonwealth may hold real or personal property, or money, on
trust.
Subclause (6) clarifies that the right to sue is taken not to be personal property for the
purposes of subclause (3).
Clause 61 - Commissioner's liabilities are Commonwealth liabilities
Clause 61 provides that any of the Commissioner`s financial liabilities are to be taken
to be liabilities of the Commonwealth.
Subclause (2) provides a definition of financial liability` for the purposes of clause
61.
Clause 62 - Commissioner has privileges and immunities of the Crown
Clause 62 provides that the Commissioner has the privileges and immunities of the
Crown in right of the Commonwealth.
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Clause 63 - Delegation by the Commissioner to a member of the staff of the
ACMA etc.
Subclause 63(1) provides that the Commissioner may, by writing, delegate any or all
of the Commissioner`s functions and powers to certain members of the staff of the
ACMA or persons whose services are made available to the ACMA under paragraph
55(1)(a) of the ACMA Act.
Subclause 63(2) requires a delegate of the Commissioner to comply with any written
directions of the Commissioner.
Subclause 63(3) prohibits the Commissioner from delegating the power to make, vary
or revoke a legislative instrument.
Clause 64 - Delegation by the Commissioner to a body corporate
Subclause 64(1) provides that the Commissioner may, by writing, delegate any or all
of the Commissioner`s functions and powers under Part 3 or Part 4 (except clauses 35
or 37) of the Online Safety Bill to a body corporate that meets certain criteria set out
at paragraphs (c) to (e).
Subclause 64(2) requires a delegate under this clause to comply with any written
directions of the Commissioner.
Subclause 64(3) provides for the exchange of information between a delegated body
corporate entity and the Commissioner that is relevant to the performance or exercise
of the functions or powers of the Commissioner.
Subclause 64(4) enables the legislative rules to provide that a body corporate to which
powers or functions have been delegated in accordance with this clause, is a body
corporate established for a public purpose, for the purposes of any specified law of the
Commonwealth other than the Online Safety Bill.
Subclause 64(5) provides that the Minister may enter into an agreement with a body
corporate, to which the Commissioner has delegated functions or powers, to
remunerate the body corporate for performing or exercising those delegated functions,
or powers.
Clause 65 - Sub-delegation by body corporate
Subclause 65(1) allows for a body corporate to whom the Commissioner has
delegated functions or powers, to sub-delegate those functions or powers to a person
who is a director or employee of the body corporate and satisfies the conditions set
out in the legislative rules.
Subclause 65(2) requires a sub-delegate to comply with any written directions of the
body corporate or the Commissioner.
Subclause 65(3) provides that sections 34AA, 34AB and 34A of the Acts
Interpretation Act 1901 apply to a sub-delegation in a corresponding way to the way
that they apply to a delegation.
Clause 66 - Annual report
Subclause 66(1) requires the Commissioner to prepare and give to the Minister, for
presentation to the Parliament, an annual report as soon as practicable after the end of
each financial year on the operations of the Commissioner during that year. The note
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to subclause (1) refers to additional rules about annual reports in section 34C of the
Acts Interpretation Act 1901.
Subclause 66(2) requires a report made under subclause (1) to include a report on the
operations under the Online Safety Bill during the year of a body corporate to which
the Commissioner has delegated one or more functions or powers.
Clause 67 - Assistance to the Commissioner
Clause 67 requires the ACMA to assist the Commissioner to perform his or her
functions and exercise his or her powers, including by making available members of
the staff of the ACMA, and to do so to the extent the Commissioner reasonably
requires (subclauses (1) and (3)). Such assistance may include the provision of advice
and the making available of resources and facilities (subclause (2)).
Subclause (4) enables the Minister, by legislative instrument, to give directions to the
ACMA in relation to the performance or exercise of its functions or powers under
clause 67. The notes to subclause (4) refer to the power to vary and revoke
instruments under subsection 33(3) of the Acts Interpretation Act 1901 and sections
44 and 54 of the Legislative Instruments Act 2003 which provide that the
disallowance and sunsetting arrangements under that Act do not apply to Ministerial
directions.
The ACMA must comply with a direction made under subclause (4) (subclause (5)).
Subclause (6) provides that, for the purpose of clause 67, a member of the staff of the
ACMA includes an officer or employee whose services are made available to the
ACMA under paragraph 55(1)(a) of the ACMA Act.
Clause 68 - Commissioner not subject to direction by the ACMA
Clause 68 clarifies that the Commissioner is not subject to direction by the ACMA,
any of its members or associate members, or any member of its staff in relation to the
performance of a function, or the exercise of a power, by the Commissioner.
Clause 69 - Consultants
Subclause 69(1) enables the Commissioner, on behalf of the Commonwealth, to
engage consultants that have suitable qualifications and experience. Consultants are to
be engaged on the terms and conditions that the Commissioner determines in writing
(subclause 69(2)).
Clause 70 - Minister may give directions to the Commissioner
Subclause 70(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. The notes to subclause (1) refer to the power to vary
and revoke instruments under subsection 33(3) of the Acts Interpretation Act 1901
and sections 44 and 54 of the Legislative Instruments Act 2003 which provide that the
disallowance and sunsetting arrangements under that Act do not apply to Ministerial
directions.
Subclause 70(2) provides that directions made under subclause (1) must be of a
general nature only.
Subclause 70(3) provides that subclause (2) does not apply to the Commissioner`s
powers under subclause 64(1) (which deals with delegation to a body corporate).
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The Commissioner is required to comply with a direction made under subclause (1)
(subclause 70(4)).
Part 8--Children's Online Safety Special Account
Part 8 establishes the Children`s Online Safety Special Account (Special Account)
and provides for how moneys may be credited to or debited from the Special Account.
Clause 71 - Simplified outline of this Part
Clause 71 is a simplified outline of Part 8 of the Online Safety Bill. This simplified
outline is included to assist readers to understand the substantive provisions of Part 8.
However, the outline is not intended to be comprehensive. It is intended that readers
should rely on the substantive provisions of Part 8.
Clause 72 - Children's Online Safety Special Account
Clause 72 establishes the Special Account (see subclause (1)).
Subclause (2) provides that the Special Account is a special account for purposes of
the Public Governance, Performance and Accountability Act 2013.
The ACMA is to administer the Special Account (subclause (3)). An amount must not
be debited from the Special Account without the Commissioner`s written approval
(subclause (4)).
Clause 73 - Credits to the Account
Clause 73 provides for the crediting of money to the Special Account.
Subclause (1) enables the Minister to determine that a specified amount be credited to
the Special Account. If there is an appropriation for a departmental item that relates to
the ACMA in an Appropriation Act, the Minister may, by writing, determine that a
specified amount be debited against that appropriation and credited to the Special
Account.
A determination made under subclause (1) is a legislative instrument, but is not
subject to Parliamentary disallowance under section 42 of the Legislative Instruments
Act 2003 (subclause (2)). Exclusion from disallowance is appropriate in this instance
to ensure certainty of funding to the Commissioner. This is similar to arrangements
under section 44 of the Legislative Instruments Act 2003, which excludes instruments
made under Appropriation Acts from disallowance.
For the purposes of the application of clause 73 to an Appropriation Act, the term
ACMA departmental item` is defined to mean a departmental item (within the
meaning of the Appropriation Act) that relates to the ACMA (subclause (3)).
Clause 74 - Purposes of the Account
Clause 74 sets out the purposes of the Special Account, which are:
to enhance online safety for children;
to make grants under paragraph 15(1)(g);
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to pay remuneration and other employment-related costs and expenses in respect
of APS employees whose duties relate to the performance or exercise of the
Commissioner`s functions or powers;
to pay any other costs, expenses and other obligations incurred by the
Commonwealth in connection with the performance or exercise of the
Commissioner`s functions or powers; and
to pay any costs, expenses and other obligations incurred by the Commonwealth
under an agreement entered into under subclause 64(5).
The note to clause 74 draws the reader`s attention to section 80 of the Public
Governance, Performance and Accountability Act 2013, which deals generally with
special accounts.
Part 9--Disclosure of information
Part 9 sets out the circumstances in which the Commissioner may disclose certain
information, and the parties to which such information may be disclosed, including
among others: the Minister, specified regulatory and law enforcements authorities,
teachers, school principals and parents.
Clause 75 - Simplified outline of this Part
Clause 75 is a simplified outline of Part 9 of the Online Safety Bill. This simplified
outline is included to assist readers to understand the substantive provisions of Part 9.
However, the outline is not intended to be comprehensive. It is intended that readers
should rely on the substantive provisions of Part 9.
The note to clause 75 cross-references clause 92 (which provides for referral of
matters to law enforcement agencies).
Clause 76 - Scope
Clause 76 sets out the scope of Part 9, which applies to information obtained by the
Commissioner through the exercise of powers, or performance of functions, conferred
on the Commissioner by the Online Safety Bill or the BSA.
In dealing with the disclosures under this Part, it is expected that the Commissioner
will be sensitive to privacy issues in disclosing information to other parties and will
be expected to adopt appropriate procedures for the handling and disclosure of
information about children.
Clause 77 - Disclosure to Minister
Clause 77 provides for the Commissioner to disclose information to the Minister.
Clause 78 - Disclosure to APS employees for advising the Minister
Clause 78 provides for the Commissioner to disclose information to the Secretary of
the Minister`s Department or an APS employee within that Department who is
authorised by the Secretary.
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Clause 79 - Disclosure to Royal Commissions
Clause 79 allows the Commissioner to disclose information to a Royal Commission,
and to impose conditions in relation to such information.
Subclause (1) provides for the Commissioner to disclose information to a Royal
Commission.
Subclause (2) allows the Commissioner to impose written conditions to be complied
with in relation to information which has been disclosed to a Royal Commission. This
is an important safeguard by which the Commissioner may limit further disclosure,
where it is appropriate to do so.
Subclause (3) provides that an instrument under subclause 79(2) that imposes
conditions relating to one particular disclosure is not a legislative instrument.
Subclause (3) is declaratory of the law and is included to assist readers rather than
create an exception to the Legislative Instruments Act 2003.
Subclause (4) provides that any other instrument under subclause 79(2) is a legislative
instrument.
Clause 80 - Disclosure to certain authorities
Subclause 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. For example, the Commissioner might
disclose information to the AFP under subclause 80(1) if satisfied that the information
would assist the AFP to investigate a cybercrime offence under the Criminal Code.
The disclosures authorised under clause 80 are not intended to derogate from other
authorised disclosures, such as the referral of matters to law enforcement agencies
under clause 92 of the Online Safety Bill, clause 40 of Schedule 5 to the BSA or
clause 69 of Schedule 7 to the BSA.
Subclause (2) allows the Commissioner to impose written conditions to be complied
with in relation to information disclosed under subclause (1). This provides a
safeguard by which the Commissioner may limit further disclosure of the information,
where it is appropriate to do so.
Subclause (3) provides that an instrument under subclause 80(2) that imposes
conditions relating to one particular disclosure is not a legislative instrument.
Subclause (3) is declaratory of the law and is included to assist readers rather than
create an exception to the Legislative Instruments Act 2003.
Subclause (4) provides that any other instrument under subclause 80(2) is a legislative
instrument.
Clause 81 - Disclosure to teachers or school principals
Under subclause 81(1), the Commissioner may disclose information to a teacher or
school principal if satisfied that the information will assist in the resolution of a
complaint made under clause 18 of the Online Safety Bill. Where cyber-bullying
involves a group of school students, involving the school may be the quickest and
most effective means of resolving the complaint. The Commissioner will need to be
able to disclose information to the school in these circumstances.
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Subclause (2) allows the Commissioner to impose written conditions to be complied
with in relation to information disclosed under subclause (1). For example, the
Commissioner may impose a condition preventing secondary disclosures to third
parties.
Subclause (3) provides that an instrument under subclause 81(2) that imposes
conditions relating to one particular disclosure is not a legislative instrument.
Subclause (3) is declaratory of the law and is included to assist readers rather than
create an exception to the Legislative Instruments Act 2003.
Subclause (4) provides that any other instrument under subclause 81(2) imposing
conditions is a legislative instrument.
Clause 82 - Disclosure to parents or guardians
Clause 82 enables the Commissioner to disclose information to a parent or guardian
of an Australian child if the Commissioner is satisfied that the information will assist
in the resolution of a complaint made under clause 18 of the Online Safety Bill.
Subclause (2) allows the Commissioner to impose written conditions to be complied
with in relation to information disclosed under subclause (1). Such conditions may
include a requirement preventing secondary disclosures to third parties.
Subclause (3) provides that an instrument under subclause 82(2) that imposes
conditions relating to one particular disclosure is not a legislative instrument.
Subclause (3) is declaratory of the law and is included to assist readers rather than
create an exception to the Legislative Instruments Act 2003.
Subclause (4) provides that any other instrument under subclause 82(2) imposing
conditions is a legislative instrument.
Clause 83 - Disclosure with consent
Clause 83 allows the Commissioner to disclose information that relates to the affairs
of a person if the person has consented to the disclosure and the disclosure is in
accordance with that consent.
Clause 84 - Disclosure of publicly available information
Clause 84 allows the Commissioner to disclose information that is already publicly
available.
Clause 85 - Disclosure of summaries and statistics
Clause 85 allows the Commissioner to disclose summaries of de-identified
information and statistics derived from de-identified information. The term
de-identified` is defined in clause 4 of the Online Safety Bill.
Clause 86 - Relationship with Part 13 of the Telecommunications Act 1997
Clause 86 clarifies that the disclosures authorised by Part 9 do not authorise a
disclosure of information that is prohibited by Part 13 of the Telecommunications
Act, which regulates the use and disclosure of information obtained by certain bodies
during the supply of telecommunication services.
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Part 10--Miscellaneous
Part 10 deals with miscellaneous matters, such as review of decisions and legislative
rules.
Clause 87 - Simplified outline of this Part
Clause 87 is a simplified outline of Part 10 of the Online Safety Bill. This simplified
outline is included to assist readers to understand the substantive provisions of
Part 10. However, the outline is not intended to be comprehensive. It is intended that
readers should rely on the substantive provisions of Part 10.
Clause 88 - Review of decisions
Clause 88 provides for the review by the Administrative Appeals Tribunal (AAT) of
certain decisions made by the the Commissioner, and sets out who may make an
application for such review.
Subclause (1) provides for applications for review to be made to the AAT for a
decision made under subclause 23(5) to refuse to declare a social media service as a
tier 1 social media service, and under clause 25 to revoke a declaration of tier 1 status
in relation to a social media service. Under subclause (2), any application made under
subclause (1) may be made by the provider of the social media service concerned.
A decision to give a social media service notice to the provider of a social media
service under clause 35 is reviewable under subclause 88(3). Subclause (4) limits who
can make an application under subclause (3) to the provider of the social media
service who received a notice under clause 35, or the end-user who posted the
material the subject of the notice as these are the parties directly affected by the
notice.
Under subclause (5), applications may be made to the AAT to review decisions made
by the Commissioner refusing to give a social media service notice to a social media
service. Subclause (6) limits who can make an application under subclause (5) to a
person who made a complaint under clause 18 about the material the subject of the
social media service notice, or the person who was the target of the material the
subject of the social media service notice, or a person who has the consent of the
person who was the target of the material the subject of the social media service
notice.
Decisions by the Commissioner to give an end-user notice under clause 42 are
reviewable under subclause (7). It is not proposed to enable merits review for
decisions by the Commissioner to not issue an end-user notice. There will be a range
of informal mechanisms available to the Commissioner for dealing with end-users,
such as persuasion, negotiation, conciliation or referral to schools. Many complaints
may be resolved without resort to the use of formal powers and generally it will be a
preferred outcome for the Commissioner to use the least interventionist means
available. It would not be appropriate to provide for merits review of decisions to not
issue end-user notices in these circumstances.
Clause 89 - Protection from civil proceedings
Clause 89 provides for instances in which a person is protected from civil proceedings
in relation to certain acts done in accordance with the Online Safety Bill or the BSA.
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Subclause (1) prohibits civil proceedings from being brought against a person in
respect of loss, damage or injury of any kind suffered by another person because of
the following acts done in good faith:
the making of a complaint under clause 18 (complaints about cyber-bullying
material);
the making of a statement to, or the giving of a document or information to, the
Commissioner in connection with an investigation under clause 19.
Subclause 89(2) prohibits civil proceedings from being brought against a person in
respect of acts done in compliance with a request under clause 29 (request for removal
of cyber-bullying material), a social media service notice or an end-user notice.
Clause 90 - Liability for damages
Persons listed in paragraphs (a) to (c) of clause 90 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 Online Safety Bill or the
BSA.
Clause 91 - Protection from criminal proceedings--Commissioner etc.
The purpose of clause 91 is to protect from criminal proceedings persons whose
powers and functions require them to do things in relation to material which would
otherwise be prohibited. This provision is necessary to enable the protected persons to
effectively perform their statutory functions.
Clause 91 provides protection from criminal liability for protected persons` (defined
in subclause (1)) in relation to any of the acts listed in subclause (2) that were
undertaken in connection with the exercise of a power, or the performance of a
function, conferred on the Commissioner by or under the Online Safety Bill. This is
intended to protect those delegated persons and body corporate entities who have
undertaken activities as per subclause (2) in connection with exercise of a power or
performance of a function conferred to them by the Commissioner.
For the purposes of clause 91, possession of material` as referred to in
paragraph (2)(b) includes the custody or control of material, as clarified under
subclause (3).
Clause 92 - Referral of matters to law enforcement agencies
The Commissioner may notify law enforcement agencies of particular material if he
or she becomes aware of the particular material (through performance of a function or
exercise of a power) that is of a sufficiently serious nature to warrant such referral and
is not covered by clause 40 of Schedule 5 to the BSA or clause 69 of Schedule 7 to
the BSA.
In those circumstances, the Commissioner may notify the material to a member of an
Australian police force (defined in clause 4), or another person or body if there is an
arrangement between the Commissioner and the chief (however described) of an
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Australian police force under which the Commissioner is authorised to notify the
content to that other person or body. The law enforcement agency officials that the
Commissioner may refer the particular material to are listed in paragraphs 92(1)(d)
and (e).
Subclause 92(2) provides an example of a manner by which material may be notified
under paragraph (1)(d) to a member of the Australian police force (as defined in
clause 4 to include the AFP and the police force of a State of Territory). Subclause
92(3) allows for the member of the Australian police force that has been notified of
the particular material under clause 92 to notify the material to a member of another
law enforcement agency.
If a member of the Australian Federal Police or of a State or Territory police force is
notified of particular content under clause 92, that person may notify the content to a
member of another law enforcement body in Australia or overseas (subclause 92(3)).
Subclause 92(4) provides that clause 92 does not, by implication, restrict the
Commissioner`s power to refer other matters to a member of the Australian police
force. The Commissioner may choose, for example, to refer matters to a member of
the Australian police force through powers vested in him or her in clause 80.
Clause 93 - Deferral of action in order to avoid prejudicing a criminal
investigation
In certain cases, it is possible that a police investigation may be concurrent with a
complaint to the Commissioner about particular material. As a safeguard, clause 93
provides that if a member of an Australian police force (as defined in clause 4)
satisfies the Commissioner that taking an action under the Online Safety Bill in
relation to material provided on a social media service or relevant electronic service
would prejudice a criminal investigation, the Commissioner is entitled to defer taking
that action until the end of a particular period of the criminal investigation.
Clause 94 - Copies of material
Clause 94 allows the Commissioner to make copies of material for the purposes of an
investigation of a complaint under clause 19. Subclause (2) exempts the
Commissioner from any copyright infringement if the Commissioner chooses to make
copies of material under subclause (1).
Clause 95 - Compensation for acquisition of property
Clause 95 establishes a compensatory regime for acquisition of property under the
Online Safety Bill. Subclause (1) sets out that the Commonwealth is liable to pay a
reasonable amount of compensation if, within the meaning of paragraph 51(xxxi) of
the Constitution, property was acquired from a person otherwise than on just terms
(within the meaning of paragraph 51(xxxi) of the Constitution). Subclause 95(2)
provides that if there is no agreement reached on the amount of compensation, then
the person may commence proceedings in court for reasonable compensation as
determined by the court.
Clause 96 - Service of notices by electronic means
Clause 96 disapplies paragraphs 9(1)(d) and (2)(d) of the Electronic Transactions Act
1999 from applying to a notice under the Online Safety Bill or the Regulatory Powers
Act, so far as that Act relates to the Online Safety Bill. Paragraphs 9(1)(d) and (2)(d)
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of the Electronic Transactions Act 1999 deal with the consent of the recipient of
information to the information being given by way of electronic communication, and
are not considered appropriate in circumstances where the Commissioner may
frequently have access to electronic contact details only.
Clause 97 - Service of notices on contact person etc.
Clause 97 is a deeming provision setting out when a summons, process or notice is
taken to have been served on, or given to, a provider of a social media service or to a
body corporate incorporated outside Australia.
Subclause (2) provides that service of a required summons, process or notice on a
provider of a social media service has taken place if served on or given to an
individual that is an employee or agent of the provider and has been designated as the
service`s contact person for the purposes of the Online Safety Bill, and the
individual`s contact details have been notified to the Commissioner.
Subclause (3) provides that if a summons, process or notice is required to be served
on, or given to a body corporate that is incorporated outside Australia, does not have a
registered or principal office in Australia, and has an agent in Australia, the summons,
process or notice can be served on, or given to, the agent of the body corporate in
Australia.
Subclause (4) clarifies that subclauses (2) and (3) have effect in addition to
section 28A of the Acts Interpretation Act 1901 which deals with the service of
documents.
Clause 98 - This Act does not limit Schedule 5 or 7 to the Broadcasting Services
Act 1992
Clause 98 clarifies that the Online Safety Bill does not limit the operation of
Schedules 5 or 7 to the BSA.
Clause 99 - This Act does not limit the Telecommunications Act 1997
Clause 99 clarifies that the Online Safety Bill does not limit the operation of the
Telecommunications Act.
Clause 100 - Implied freedom of political communication
Clause 100 is a constitutional safeguard, which provides that the Online Safety Bill
does not apply to the extent (if any) that it would infringe any constitutional doctrine
of implied freedom of political communication.
This clause does not limit the application of section 15A of the Acts Interpretation Act
1901 to the Online Safety Bill. That section provides that every Act shall be read and
construed subject to the Constitution.
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Clause 101 - Concurrent operation of State and Territory laws
In accordance with clause 101, it is the intention of Parliament that the Online Safety
Bill does not apply to the exclusion of a law of a State or Territory, to the extent to
which that law is capable of operating concurrently.
Clause 101 is intended to ensure that different Commonwealth and State/Territory
laws that address aspects of cyber-bullying will operate concurrently with one
another.
Clause 102 - This Act not to affect performance of State or Territory functions
Clause 102 is also a constitutional safeguard. It provides that a power conferred by
this Bill must not be exercised in such a way as to prevent the exercise of the powers,
or the performance of the functions, of government of a State, the Northern Territory,
the Australian Capital Territory or Norfolk Island.
Clause 103 - Revocation or variation of instruments
Subsection 33(3) of the Acts Interpretation Act 1901 provides that, where an Act
confers a power to make, grant or issue any instrument of a legislative or
administrative character, the power shall be construed as including a power
exercisable in the like manner and subject to the like conditions (if any) to, relevantly,
revoke or vary any such instrument.
Various clauses of the Online Safety Bill permit the making of instruments of this
nature, and expressly provide for the revocation and variation of instruments so made.
Clause 103 provides that a provision of the Online Safety Bill that expressly
authorises the revocation or variation of an instrument does not, by implication, limit
the application of subsection 33(3) of the Acts Interpretation Act 1901 in relation to
other instruments under this Act.
This clause operates to put beyond doubt that, notwithstanding the presence of certain
express variation and revocation provisions in the Online Safety Bill, subsection 33(3)
of the Acts Interpretation Act 1901 continues to apply in relation to other instruments
under the Online Safety Bill.
Clause 104 -Terms of use of a social media service
Clause 104 clarifies when terms of use of a social media service may be regarded as
the equivalent of a provision that prohibits end-users from posting cyber-bullying
material. The issue of when terms of use will be considered equivalent is relevant to
ascertaining whether a social media service meets the basic online safety
requirements, under clause 21, and also to application of the special rule` in relation
to a request for removal of cyber-bullying material under clause 29.
Terms of use which do not expressly prohibit end-users from posting on the social
media service cyber-bullying material targeted at an Australian child, but which have
the same effect, may be reasonably regarded as equivalent.
Subclause (2) clarifies that, for the purposes of clause 104, the ordinary meaning of
cyber-bullying material` applies.
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Clause 105 - Provider of social media service or relevant electronic service
Clause 105 is an interpretive provision. The expressions social media service` and
relevant electronic service` are defined in clause 4, and several provisions of the
Online Safety Bill refer to such services. Clause 105 provides that, for the purposes of
the Online Safety Bill, a person does not provide a social media service or relevant
electronic service merely because the person:
supplies a carriage service that enables material to be accessed or delivered, or
provides a billing service, or a fee collection service, in relation to a social media
service or relevant electronic service.
Clause 106 - Extended meaning of use
Clause 106 is an interpretative provision. It provides that, unless the contrary intention
appears, a reference, in the Online Safety Bill, to the use` of a thing is a reference to
the use of the thing either in isolation or in conjunction with one or more other things.
Clause 106 is based on of clause 17 of Schedule 7 to the BSA, and is intended to
overcome potential difficulties in attributing instrumentality to a single element of a
system, where the whole system is required to perform an act.
Clause 107 - Review of this Act etc.
Clause 107 requires that within 3 years after the commencement of this clause, the
Minister must cause a review to be conducted of the operation of the Enhancing
Online Safety for Children Act 2014 and the legislative rules (clause 108) and whether
any amendments to the Act or the rules are required.
The review must also consider whether a delegation should be made to a body
corporate under subclause 64(1) (under which the Commissioner is able to delegate
certain powers to a company limited by guarantee specified in the legislative rules).
Subclause (2) requires the Minister to cause to be prepared a report of this review, and
after completion of the report, for copies of the report to be tabled in each House of
Parliament within 15 sitting days of that House.
Clause 108 - Legislative rules
Clause 108 is a standard provision which permits the Minister to make legislative
rules for the purposes of the Online Safety Bill, subject to the exclusions set out in
subclause 108(2).
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ENHANCING ONLINE SAFETY FOR CHILDREN
(CONSEQUENTIAL AMENDMENTS) BILL 2014
Clause 1 - Short title
Clause 1 provides that the Consequential Amendments Bill, when enacted, may be
cited as the Enhancing Online Safety for Children (Consequential Amendments) Act
2014.
Clause 2 - Commencement
Clause 2 provides for the commencement of the Consequential Amendments Bill.
Clauses 1 to 3 of the Consequential Amendments Bill and anything else not covered
in the table at subclause (1) will commence on the day of Royal Assent.
Part 1 of Schedule 1, Part 1 of Schedule 2 and Schedule 3 will commence at the same
time as clause 3 of the Online Safety Bill. Clause 3 of the Online Safety Bill
commences on a date to be fixed by Proclamation under clause 2 of that Bill.
However, if clause 3 does not commence within the period of 6 months beginning on
the day of Royal Assent of that Bill, it commences on the day after the end of that
period.
Part 2 of Schedule 1 will commence immediately after the commencement of Part 1
of Schedule 1, the commencement of which is outlined above.
Part 2 of Schedule 2 will commence immediately after the commencement of Part 3
of Schedule 1 to the Telecommunications Legislation Amendment (Deregulation) Act
2014 (the Telecommunications Deregulation Act), noting the possible effect of clause
4 on the reference to the title of this Act.
However, if Part 3 of Schedule 1 to the Telecommunications Deregulation Act
commences before the commencement of Part 1 of Schedule 2 of the Consequential
Amendments Bill, Part 2 of Schedule 2 will not commence at all. The reason for this
is outlined at the note for Part 2 of Schedule 2 below. The commencement of Part 1 of
Schedule 2 of the Consequential Amendments Bill is outlined above.
Clause 3 - Schedules
Clause 3 provides that legislation that is specified in a Schedule to the Consequential
Amendments Bill is amended or repealed as set out in the applicable items in that
Schedule, and any other item in a Schedule has effect according to its terms. There are
three Schedules to this Bill.
The items in Schedules 1 and 2 make amendments consequential to the Online Safety
Bill, and reflect the new functions of the Commissioner. The Schedules amend the
following Acts:
the ACMA Act
the BSA
the Criminal Code
the FOI Act
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the Telecommunications Act
Schedule 3 contains transitional provisions relating to the amendments made by the
Consequential Amendments Bill and the enactment of the Online Safety Bill.
Clause 4 - Translation of certain references
Clause 4 translates references to the Telecommunications Deregulation Act in the
Online Safety Bill if the Telecommunications Legislation Amendment (Deregulation)
Bill 2014 is not enacted until 2015, where it would instead need to be cited as the
Telecommunications Legislation Amendment (Deregulation) Act 2015.
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Schedule 1--Amendments of the Broadcasting Services Act 1992
Schedule 1 amends the BSA to transfer relevant functions and powers for the
administration of the Online Content Scheme in Schedules 5 and 7 to the BSA from
the ACMA to the Commissioner, and to provide powers for the Commissioner
relating to its functions under the Online Safety Bill.
Part 1--General amendments
Part 1 of Schedule 1 to the Consequential Amendments Bill deals with general
amendments to the BSA for the purpose described above.
Part 13 of the BSA provides the ACMA with information gathering powers. Items 2
to 15 of Part 1 of Schedule 1 amend Part 13 of the BSA to reflect the transfer of the
power to conduct specific investigations relating to the Online Content Scheme from
the ACMA to the Commissioner. They also apply Part 13 to investigations conducted
by the Commissioner under the Online Safety Bill.
Items 16 to 23 amend Schedule 5 to the BSA and Items 24 to 35 amend Schedule 7 to
the BSA to reflect the transfer of the administration of Schedules 5 and 7 to the BSA
from the ACMA to the Commissioner.
Broadcasting Services Act 1992
Item 1 - Subsection 6(1)
Item 1 inserts a definition of Commissioner into subsection 6(1) of the BSA,
providing that the Commissioner is the Children`s e-Safety Commissioner established
under the Online Safety Bill.
Item 2 - Part 13 (heading)
Item 2 repeals the heading of Part 13 of the BSA Information gathering by the
ACMA` and substitutes the replacement heading Information gathering by the
ACMA and the Commissioner` to add a reference to the Commissioner`s powers
under this Part.
Item 3 - At the end of Division 1 of Part 13
Division 1 of Part 13 of the BSA creates introductory provisions for Part 13, which
previously only applied to information gathering by the ACMA, including
investigations conducted by it. Item 3 inserts new section 169A at the end of
Division 1 of Part 13, to distinguish that an investigation` by the Commissioner is
limited to an investigation conducted under clause 19 of the Online Safety Bill, clause
27 of Schedule 5 to the BSA or clause 44 of Schedule 7 to the BSA.
Item 4 - Section 173
Item 5 - Section 173
Item 6 - At the end of section 173
Section 173 of the BSA empowers the ACMA to give a written notice summoning a
person to give evidence regarding an investigation. Items 4 to 6 amend section 173,
adding new subsection 173(2) to provide equivalent powers to the Commissioner in
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respect of investigations conducted under the Online Safety Bill or Schedules 5 or 7 to
the BSA.
Item 7 - Before subsection 174(1)
Item 8 - At the end of section 174
Section 174 of the BSA empowers a delegate of the ACMA to require a person
summoned to give evidence for an investigation to be examined under affirmation or
oath that the person will make statements true to the best of the person`s knowledge.
Items 7 and 8 amend section 174. Item 7 inserts a new subheading. Item 8 adds new
subsections 174(4) to (6) to provide equivalent powers in respect of investigations
conducted by the Commissioner or a delegate of the Commissioner.
Item 9 - Before subsection 176(1)
Item 10 - At the end of section 176
Section 176 of the BSA requires a record to be taken of an ACMA delegate`s
examination of a person during an investigation, and entitles that person to be given a
copy of that record. Items 9 and 10 amend section 176. Item 9 inserts a new
subheading. Item 10 adds new subsections 176(3) and (4) to provide equivalent
requirements for examinations of persons during investigations conducted by the
Commissioner or a delegate of the Commissioner.
Item 11 - Section 177
Item 12 - Paragraph 177(a)
Item 13 - At the end of section 177
Section 177 of the BSA empowers the ACMA to give a written notice requiring a
person to make documents in the possession of the person available to the ACMA that
may contain information relevant to the subject matter of an investigation. The person
must also permit the ACMA to make copies of those documents. Items 11 to 13
amend section 177. Items 11 and 12 make consequential amendments. Item 13 adds
new subsection 177(2) to provide equivalent powers in respect of investigations
conducted by the Commissioner or a delegate of the Commissioner.
Item 14 - Subsection 200(3)
Item 15 - At the end of section 200
Subsection 200(3) of the BSA provides the same protections afforded to a witness in a
proceeding in the High Court to persons who appear at a hearing, give evidence or
produce document at an investigation or hearing conducted or held by the ACMA.
Items 14 and 15 amend section 200. Item 14 makes a consequential amendment.
Item 15 adds new subsection 200(4) to give the same protections to persons who give
evidence or produce documents at an investigation conducted by the Commissioner.
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Item 16 - Clause 27 of Schedule 5
Item 17 - Subclause 28(2) of Schedule 5
Item 18 - Subclause 68(5) of Schedule 5
Item 19 - Subclause 69(4) of Schedule 5
Item 20 - Subclause 70(8) of Schedule 5
Item 21 - Subclause 71(8) of Schedule 5
Item 22 - Clause 74 of Schedule 5
Item 23 - Paragraph 94(f) of Schedule 5
Item 24 - Clause 44 of Schedule 7
Item 25 - Subclause 45(2) of Schedule 7
Item 26 - Subclause 91(4) of Schedule 7
Item 27 - Subclause 92(3) of Schedule 7
Item 28 - Subclause 93(7) of Schedule 7
Item 29 - Subclause 94(7) of Schedule 7
Item 30 - Clause 97 of Schedule 7
Item 31 - Paragraph 112(1)(b) of Schedule 7
Item 32 - Paragraph 112(1)(d) of Schedule 7
Item 33 - Paragraph 112(1)(e) of Schedule 7
Item 34 - Paragraph 114(f) of Schedule 7
Item 35 - Subclause 115(3) of Schedule 7
Schedules 5 and 7 to the BSA contain a variety of references to powers and
responsibilities of the ACMA, which are to be transferred to the Commissioner.
Items 16 to 35 amend various provisions in these Schedules to replace references to
the ACMA with references to the Commissioner, or make other similar amendments.
In particular, item 31 repeals paragraph 112(1)(b) as there is no equivalent class of
persons to members or associate members of the ACMA and item 32 replaces a
reference to consultants under paragraph 112(1)(d) with consultants engaged under
clause 69 of the Online Safety Bill.
Part 2--Amendments to change certain references to the ACMA into
references to the Commissioner
Broadcasting Services Act 1992
Item 36 - Amendments--changing certain references to the ACMA into
references of the Commissioner
Item 37 - Schedule 5
Item 38 - Schedule 7 (other than paragraphs (a) and (b) of the definition of
licensed broadcasting service in clause 2, subparagraph 9A(1)(a)(ii) and
paragraphs 112(1)(c) and (e))
Similarly to items 16 to 35 above, items 36 to 38 amend Schedules 5 and 7 to the
BSA to replace the remaining references to the ACMA with references to the
Commissioner. However, in Schedule 7, the references to the ACMA are retained in
paragraphs (a) and (b) of the definition of licensed broadcasting service in clause 2,
in subparagraph 9A(1)(a)(ii) and in paragraphs 112(1)(c) and (e).
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Schedule 2--Amendments of other Acts
Schedule 2 amends the ACMA Act, the Criminal Code, the FOI Act and the
Telecommunications Act consequential to the transfer of relevant functions and
powers for the administration of the Online Content Scheme in Schedules 5 and 7 to
the BSA from the ACMA to the Commissioner.
Part 1--General amendments
Australian Communications and Media Authority Act 2005
Part 1 of Schedule 2 amends the ACMA Act to:
reflect the office of the Children`s e-Safety Commissioner as an independent
statutory office residing within the ACMA; and
limit the ACMA`s functions in relation to internet content to reflect the
Commissioner`s responsibility for those matters that fall within the
Commissioner`s functions; and
require the ACMA to include in the ACMA`s annual report, details of the
ACMA`s expenditure on the Commissioner`s functions.
It also makes consequential amendments to the Criminal Code, the FOI Act and the
Telecommunications Act.
Item 1 - Section 3 (subparagraph (b)(iia) of the definition of authorised
disclosure information)
Item 2 - Section 3 (paragraph (c) of the definition of investigation)
Items 1 and 2 amend the definitions of authorised disclosure information and
investigation in section 3 of the ACMA Act to remove references to Schedules 5 and
7 to the BSA. These amendments reflect the transfer of functions and powers under
those Schedules from the ACMA to the Commissioner.
Item 3 - Paragraph 4(3)(b)
Section 4 of the ACMA Act defines when an inquiry, investigation or hearing ends
for the purposes of that Act. Item 3 amends paragraph 4(3)(b) to remove references to
provisions in Schedules 5 and 7 to the BSA, as a consequence of the functions and
powers under those Schedules being transferred from the ACMA to the
Commissioner.
Item 4 - Paragraph 10(1)(a)
Item 5 - Subparagraph 10(1)(o)(ii)
Subsection 10(1) of the ACMA Act sets out the ACMA`s broadcasting, content and
datacasting functions. Items 4 and 5 amend subsection 10(1) to remove functions
relating to the online content scheme under the BSA or Schedules 5 or 7 to the BSA.
These amendments reflect the transfer of these functions from the ACMA to the
Commissioner, as provided for in clause 15 of the Online Safety Bill.
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Item 6 - Paragraphs 53(2)(n), (o), (p) and (pa)
Subsection 53(2) of the ACMA Act prohibits the ACMA from delegating certain
powers under the BSA through its delegation powers under sections 51 and 52 of the
ACMA Act. Item 6 repeals paragraphs 53(2)(n), (o), (p) and (pa) of the ACMA Act
that prohibit delegation of powers under Schedules 5 and 7 to the BSA relating to
powers to formulate specific schemes or to determine specific standards or
determinations. These amendments are consequential to the functions and powers
under those Schedules being transferred from the ACMA to the Commissioner.
Item 7 - After paragraph 57(a)
Section 57 of the ACMA Act outlines the required components of the annual report
prepared by the Chair of the ACMA under section 46 of the Public Governance,
Performance and Accountability Act 2013. Item 7 amends section 57, adding new
paragraph 57(aa). This paragraph 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 8 - After paragraph 59D(1)(l)
Section 59D of the ACMA Act empowers an ACMA official, where authorised in
writing by the ACMA Chair, to disclose authorised disclosure information to specific
authorities specified in subsection 59D(1). Item 8 amends subsection 59D(1), adding
new paragraph 59D(1)(la) to allow disclosure of such information to be made to the
Commissioner.
Criminal Code Act 1995
Item 9 - Paragraph 273.9(5)(a) of the Criminal Code
Item 10 - Paragraph 273.9(5)(a) of the Criminal Code
Item 11 - Paragraph 474.21(4)(a) of the Criminal Code
Item 12 - Paragraph 474.21(4)(a) of the Criminal Code
Item 13 - Paragraph 474.24(4)(a) of the Criminal Code
Item 14 - Paragraph 474.24(4)(a) of the Criminal Code
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) also provides 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 ACMA to detect prohibited content or potential prohibited content for
the purposes of Schedules 5 and 7 to the BSA.
Items 9 to 14 replace references to the ACMA with references to the Commissioner,
consequential to the transfer of the functions and powers under Schedules 5 and 7 to
the BSA from the ACMA to the Commissioner.
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Freedom of Information Act 1982
Item 15 - Division 1 of Part II of Schedule 2 (before the item relating to the
Classification Board)
Subsection 7(2) of the 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 exempted bodies` documents. Item 15 amends this division to add
an exemption for the Children`s e-Safety Commissioner. This exempts the
Commissioner from releasing to the public particular content-service documents or
internet-service documents relating to the performance of a function, or the exercise
of a power under Schedules 5 and 7 of the BSA.
Telecommunications Act 1997
Item 16 - Section 284 (heading)
Item 17 - After subsection 284(1)
Part 13 of the Telecommunications Act provides a framework for the protection of
information relating to communications. Section 284 of the Telecommunications Act
provides exceptions for eligible persons and eligible number-database persons, as
listed in sections 271 and 272 of that Act, from the prohibition of disclosing certain
types of information or documents specified under sections 276 and 277.
Items 16 and 17 amend section 284. Item 16 substitutes a new heading. Item 17 adds
new subsection 284(1A) to provide an additional exception to sections 276 and 277.
This exception 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.
Item 18 - Section 299 (heading)
Item 19 - After subsection 299(1)
Item 20 - Section 299 (note)
Section 299 provides that if information or a document is disclosed to a person under
section 284 of the Telecommunications Act, the person must not disclose or use the
information or document except for the purpose of, or in connection with, the carrying
out of the functions and powers of the relevant agency listed in section 284 (e.g. the
ACMA in subsection 299(1) and 284(1)).
Items 18 to 20 amend section 299. Item 19 inserts new subsection 299(1A) to provide
a similar secondary disclosure/use provision in relation to information or a document
disclosed to the Commissioner under new subsection 284(1A) (see items 16 and 17,
above). Items 18 and 20 update the section 299 heading and note to include a
reference to the Commissioner.
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Item 21 - Part 34 (heading)
Item 22 - At the end of section 579
Item 23 - After subsection 581(2)
Item 24 - After subsection 581(4)
Part 34 deals with special provisions relating to functions and powers of the ACMA
and the Attorney-General in respect of telecommunications. Within Part 34,
section 581 deals with the ACMA`s power to give written directions to carriers or
service providers in connection with performing or exercising any of the ACMA`s
telecommunications functions or powers.
Items 23 and 24 amend section 581, adding new subsections 581(2A), (2B) and (4A)
to also allow the Commissioner to give written directions to carriers or service
providers in connection with his or her functions or powers. Carriers or service
providers must comply with such directions.
Items 21 and 22 make consequential amendments to the heading and simplified
outline of Part 34 to reflect these new powers.
Part 2--Amendments contingent on the commencement of the
Telecommunications Legislation Amendment (Deregulation) Act 2014
The following amendments are contingent upon the date of commencement of the
Telecommunications Deregulation Act. These items commence immediately after
Part 3 of Schedule 1 to that Act if it has not commenced before Part 1 of Schedule 2
to the Consequential Amendment Bill. Otherwise, these items do not commence at all.
Part 3 of Schedule 1 to the Telecommunications Legislation Amendment
(Deregulation) Bill 2014, if enacted, would repeal and replace the headings of
sections 284 and 299 and the note to section 299 of the Telecommunications Act.
Similarly, items 16, 18 and 20 in Part 1 of Schedule 2 to the Consequential
Amendments Bill also repeal and replace these headings and notes.
This Part preserves the amendments made by items 16, 18 and 20 above in the event
that Part 3 of Schedule 1 to Telecommunications Deregulation Act commences after
Part 1 of Schedule 2 to the Consequential Amendments Bill.
Telecommunications Act 1997
Item 25 - Section 284 (heading)
Item 25 remakes the amendment made by item 16 of Schedule 2 to the heading of
section 284 in the event that Part 3 of Schedule 1 to Telecommunications
Deregulation Act commences after Part 1 of Schedule 2 to the Consequential
Amendments Bill.
Item 26 - Section 299 (heading)
Item 27 - Section 299 (note)
Items 26 and 27 remake the amendments made by items 18 and 20 of Schedule 2 to
the section 299 heading and note in the event that Part 3 of Schedule 1 to
Telecommunications Deregulation Act commences after Part 1 of Schedule 2 to the
Consequential Amendments Bill.
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Schedule 3-- Transitional provisions
Schedule 3 contains transitional provisions relating to the amendments made by the
Consequential Amendments Bill and the enactment of the Online Safety Bill.
Item 1 - Definitions
Item 1 of Schedule 3 defines key terms used in Schedule 3. Notably, it defines
transition time to mean the commencement of Schedule 3, which commences at the
same time as clause 3 of the Online Safety Bill.
Item 2 - Transitional--acts of the ACMA to be attributed to the Commissioner
Item 2 provides that anything done by, or in relation to, the ACMA before the
transition time under, or for the purposes of, Schedules 5 or 7 to the BSA, has effect
as if it were done by, or in relation to, the Commissioner. This ensures continuity after
the transfer of responsibility for the administration of Schedules 5 and 7 to the BSA
from the ACMA to the Commissioner.
Item 3 - Substitution of Commissioner as a party to certain pending proceedings
Item 3 substitutes the Commissioner for the ACMA as a party to any proceedings
under, or in connection with, Schedule 5 or 7 to the BSA which were pending in any
court or tribunal immediately before the transition time and to which the ACMA was
a party.
Item 4 - Transitional--transfer of records to the Commissioner
Item 4 applies to any records or documents in possession of the ACMA immediately
before the transition time which wholly or partly concern Schedule 5 or 7 to the BSA.
Subitem 4(2) provides that if the records or documents wholly concern Schedule 5 or
7 they are to be transferred to the Commissioner after the transition time.
Subitem 4(3) provides that if the records or documents partly concern Schedule 5 or
7, they are to be made available to the Commissioner at the Commissioner`s request.
Item 5 - Transitional--authorised disclosure information
Item 5 preserves the unamended version of the definition of authorised disclosure
information for information obtained by the ACMA prior to the transition time. The
amendment of the definition of authorised disclosure information is discussed in the
notes on item 1 of Schedule 2.
Item 6 - Transitional--protection from civil proceedings
Item 6 preserves the unamended versions of clause 29 of Schedule 5 to the BSA and
clause 46 of Schedule 7 to the BSA in relation to anything done before the transition
time. These clauses are amended by Part 2 of Schedule 1.
Clause 29 of Schedule 5 and clause 46 of Schedule 7 to the BSA provide protection
from civil proceedings in certain circumstances.
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Item 7 - Transitional--protection from criminal proceedings
Item 7 preserves the unamended version of clause 112 of Schedule 7 to the BSA in
relation to anything done before the transition time by the ACMA and the other
persons specified in the item. Clause 112 is amended by Schedule 1.
Item 8 - Transitional rules
Item 8 allows the Minister to make rules, by legislative instrument, in relation to
transitional matters arising out of either or both the amendments made by the
Consequential Amendments Bill and the enactment of the Online Safety Bill.
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