Online Safety Act
2021
No. 76, 2021
Compilation
No. 3
Compilation date: 11 December 2024
Includes amendments: Act
No. 127, 2024
About
this compilation
This compilation
This is a compilation of the Online Safety
Act 2021 that
shows the text of the law as amended and in force on 11 December
2024 (the compilation
date).
The notes at the
end of this compilation (the endnotes) include information about
amending laws and the amendment history of provisions of the compiled law.
Uncommenced
amendments
The effect of
uncommenced amendments is not shown in the text of the compiled law. Any
uncommenced amendments affecting the law are accessible on the Register
(www.legislation.gov.au). The details of amendments made up to, but not
commenced at, the compilation date are underlined in the endnotes. For more
information on any uncommenced amendments, see the Register for the compiled
law.
Application,
saving and transitional provisions for provisions and amendments
If the operation
of a provision or amendment of the compiled law is affected by an application,
saving or transitional provision that is not included in this compilation,
details are included in the endnotes.
Editorial changes
For more
information about any editorial changes made in this compilation, see the
endnotes.
Modifications
If the compiled
law is modified by another law, the compiled law operates as modified but the
modification does not amend the text of the law. Accordingly, this compilation
does not show the text of the compiled law as modified. For more information on
any modifications, see the Register for the compiled law.
Self‑repealing
provisions
If a provision of
the compiled law has been repealed in accordance with a provision of the law,
details are included in the endnotes.
Contents
Part 1—Preliminary 1
1........... Short title...................................................................................... 1
2........... Commencement............................................................................ 1
3........... Objects of this Act........................................................................ 2
4........... Simplified outline of this
Act........................................................ 2
5........... Definitions.................................................................................... 5
6........... Cyber‑bullying material
targeted at an Australian child............... 14
7........... Cyber‑abuse material targeted
at an Australian adult.................. 15
8........... Determining whether material
is offensive................................. 16
9........... Material that depicts
abhorrent violent conduct.......................... 17
10......... When material is provided on a
social media service, relevant electronic service or designated internet
service.......................................................... 17
11......... When material is posted by an
end‑user of a social media service, relevant electronic service or designated
internet service......................... 17
12......... When material is removed from a
social media service, relevant electronic service or designated internet
service...................................................... 18
13......... Social media service................................................................... 18
13A....... Relevant electronic service......................................................... 19
14......... Designated internet service......................................................... 20
15......... Intimate image............................................................................ 20
16......... Non‑consensual intimate image
of a person............................... 22
17......... Hosting service........................................................................... 22
18......... On‑demand program service....................................................... 23
19......... Internet service providers........................................................... 24
20......... Supply of internet carriage
service to the public......................... 24
21......... Consent...................................................................................... 25
22......... Crown to be bound..................................................................... 25
23......... Application of this Act............................................................... 25
24......... Convention on the Rights of the
Child........................................ 25
Part 2—eSafety
Commissioner 27
25......... Simplified outline of this Part..................................................... 27
26......... eSafety Commissioner................................................................ 27
27......... Functions of the Commissioner.................................................. 27
28......... Powers of the Commissioner...................................................... 30
Part 3—Complaints, objections and investigations 31
Division 1—Introduction 31
29......... Simplified outline of this Part..................................................... 31
Division 2—Complaints
about cyber‑bullying material targeted at an Australian child 32
30......... Complaints about cyber‑bullying
material.................................. 32
31......... Investigation of complaints......................................................... 34
Division 3—Complaints
about, and objections to, intimate images 36
32......... Complaints................................................................................. 36
33......... Objection notice......................................................................... 37
34......... Investigation of complaints......................................................... 39
35......... Commissioner’s response to
objection notices............................ 39
Division 4—Complaints
about cyber‑abuse material targeted at an Australian adult 40
36......... Complaints about cyber‑abuse
material...................................... 40
37......... Investigation of complaints......................................................... 42
Division 5—Complaints
relating to the online content scheme 43
38......... Complaints about class 1
material or class 2 material................. 43
39......... Complaints relating to breach
of a service provider rule etc....... 43
40......... Complaints relating to breach
of an industry code etc................ 44
41......... Residency etc. of complainant.................................................... 44
42......... Commissioner may investigate
matters....................................... 44
43......... Commissioner may refuse to
investigate certain matters............. 46
Part 4—Basic
online safety expectations 47
Division 1—Introduction 47
44......... Simplified outline of this Part..................................................... 47
Division 2—Basic
online safety expectations 48
45......... Basic online safety
expectations................................................. 48
46......... Core expectations....................................................................... 48
47......... Consultation............................................................................... 50
48......... Service provider notifications..................................................... 51
Division 3—Reporting 53
Subdivision A—Periodic reporting about compliance with
basic online safety expectations 53
49......... Periodic reporting notice............................................................. 53
50......... Compliance with notice.............................................................. 54
51......... Formal warning........................................................................... 55
52......... Periodic reporting
determination................................................. 55
53......... Compliance with determination.................................................. 56
54......... Formal warning........................................................................... 56
55......... Service provider notifications..................................................... 56
Subdivision B—Non‑periodic
reporting about compliance with basic online safety expectations 57
56......... Non‑periodic reporting notice..................................................... 57
57......... Compliance with notice.............................................................. 59
58......... Formal warning........................................................................... 59
59......... Non‑periodic reporting
determination......................................... 59
60......... Compliance with determination.................................................. 60
61......... Formal warning........................................................................... 60
62......... Service provider notifications..................................................... 60
Subdivision C—Self‑incrimination 61
63......... Self‑incrimination....................................................................... 61
Part 4A—Social
media minimum age 63
Division 1—Introduction 63
63A....... Simplified outline of this Part..................................................... 63
63B....... Object of this Part....................................................................... 63
63C....... Age‑restricted social media
platform.......................................... 63
Division 2—Civil
penalty 66
63D....... Civil penalty for failing to take
reasonable steps to prevent age‑restricted users having accounts.......................................................................... 66
63DA.... Information that must not be
collected....................................... 66
63DB.... Use of certain identification
material and services...................... 67
63E....... Delayed effect of requirement to
take reasonable steps to prevent age‑restricted users having accounts................................................................. 68
Division 3—Privacy 69
63F....... Information collected for
purposes including taking reasonable steps to comply with age restriction............................................................................. 69
Division 4—Information‑gathering powers 71
63G....... Commissioner may obtain
information about compliance.......... 71
63H....... Compliance with notice.............................................................. 71
Division 5—Platform
provider notifications 72
63J........ Platform provider
notifications—failure to take reasonable steps 72
63K....... Platform provider
notifications—privacy................................... 72
Part 5—Cyber‑bullying
material targeted at an Australian child 73
64......... Simplified outline of this Part..................................................... 73
65......... Removal notice given to the
provider of a social media service, relevant electronic service or designated
internet service.......................................... 73
66......... Removal notice given to a
hosting service provider.................... 74
67......... Compliance with removal notice................................................ 75
68......... Formal warning........................................................................... 76
70......... End‑user notice........................................................................... 76
71......... Compliance with end‑user notice................................................ 77
72......... Formal warning........................................................................... 77
73......... Service provider notifications..................................................... 77
Part 6—Non‑consensual
sharing of intimate images 79
Division 1—Introduction 79
74......... Simplified outline of this Part..................................................... 79
Division 2—Intimate
images must not be posted without consent etc. 80
75......... Posting an intimate image........................................................... 80
76......... Formal warning........................................................................... 81
Division 3—Removal
notices 82
77......... Removal notice given to the
provider of a social media service, relevant electronic service or designated
internet service.......................................... 82
78......... Removal notice given to an end‑user.......................................... 83
79......... Removal notice given to a
hosting service provider.................... 84
80......... Compliance with removal notice................................................ 85
81......... Formal warning........................................................................... 85
Division 4—Miscellaneous 86
83......... Remedial direction...................................................................... 86
84......... Formal warning........................................................................... 86
85......... Service provider notifications..................................................... 86
86......... Exempt provision of an intimate
image...................................... 88
Part 7—Cyber‑abuse
material targeted at an Australian adult 90
87......... Simplified outline of this Part..................................................... 90
88......... Removal notice given to the
provider of a social media service, relevant electronic service or designated
internet service.......................................... 90
89......... Removal notice given to an end‑user.......................................... 91
90......... Removal notice given to a
hosting service provider.................... 92
91......... Compliance with removal notice................................................ 93
92......... Formal warning........................................................................... 93
93......... Service provider notifications..................................................... 94
Part 8—Material
that depicts abhorrent violent conduct 95
Division 1—Introduction 95
94......... Simplified outline of this Part..................................................... 95
Division 2—Blocking
requests 96
95......... Blocking request......................................................................... 96
96......... Duration of blocking request...................................................... 97
97......... Revocation of blocking request.................................................. 97
98......... Notification in relation to
domain names and URLs................... 98
Division 3—Blocking
notices 99
99......... Blocking notice........................................................................... 99
100....... Duration of blocking notice...................................................... 100
101....... Revocation of blocking notice.................................................. 100
102....... Notification in relation to domain
names and URLs................. 101
103....... Compliance with blocking notice.............................................. 101
Division 4—Exempt
material 102
104....... Exempt material........................................................................ 102
Part 9—Online
content scheme 104
Division 1—Introduction 104
105....... Simplified outline of this Part................................................... 104
106....... Class 1 material........................................................................ 104
107....... Class 2 material........................................................................ 106
108....... Restricted access system........................................................... 109
Division 2—Removal notices relating to class 1
material 111
109....... Removal notice given to the provider
of a social media service, relevant electronic service or designated internet
service........................................ 111
110....... Removal notice given to a hosting
service provider.................. 111
111....... Compliance with removal notice.............................................. 112
112....... Formal warning......................................................................... 112
113....... Revocation of removal notice................................................... 113
113A..... Service provider notifications................................................... 113
Division 3—Removal
notices relating to class 2 material 114
114....... Removal notice given to the
provider of a social media service, relevant electronic service or designated
internet service........................................ 114
115....... Removal notice given to a hosting
service provider.................. 114
116....... Compliance with removal notice.............................................. 115
117....... Formal warning......................................................................... 116
118....... Revocation of removal notice................................................... 116
118A..... Service provider notifications................................................... 116
Division 4—Remedial
notices relating to class 2 material 118
119....... Remedial notice given to the
provider of a social media service, relevant electronic service or designated
internet service........................................ 118
120....... Remedial notice given to a
hosting service provider................. 119
121....... Compliance with remedial notice.............................................. 120
122....... Formal warning......................................................................... 120
123....... Revocation of remedial notice.................................................. 120
123A..... Service provider notifications................................................... 120
Division 5—Link
deletion notices 122
124....... Link deletion notice.................................................................. 122
125....... Compliance with link deletion
notice........................................ 123
126....... Formal warning......................................................................... 123
127....... Revocation of link deletion
notice............................................ 123
Division 6—App
removal notices 124
128....... App removal notice.................................................................. 124
129....... Compliance with app removal
notice........................................ 125
130....... Formal warning......................................................................... 125
131....... Revocation of app removal notice............................................ 125
Division 7—Industry codes and industry standards 126
Subdivision
A—Interpretation 126
132....... Industry codes.......................................................................... 126
133....... Industry standards.................................................................... 126
134....... Online activity.......................................................................... 126
135....... Sections of the online industry................................................. 127
136....... Participants in a section of the
online industry.......................... 128
Subdivision B—General
principles relating to industry codes and industry standards 128
137....... Statement of regulatory policy.................................................. 128
138....... Examples of matters that may be
dealt with by industry codes and industry standards.................................................................................. 129
139....... Escalation of complaints........................................................... 133
Subdivision C—Industry
codes 133
140....... Registration of industry codes.................................................. 133
141....... Commissioner may request codes............................................. 135
141A..... Publication of notice where no body
or association represents a section of the online industry.......................................................................... 135
142....... Replacement of industry codes................................................. 136
143....... Compliance with industry codes............................................... 136
144....... Formal warnings—breach of
industry codes............................. 137
Subdivision D—Industry
standards 137
145....... Commissioner may determine an
industry standard.................. 137
146....... Compliance with industry
standards......................................... 139
147....... Formal warnings—breach of
industry standards....................... 139
148....... Public consultation on industry
standards................................. 140
Subdivision E—Register
of industry codes and industry standards 140
149....... Commissioner to maintain Register
of industry codes and industry standards 140
Subdivision F—Miscellaneous 141
150....... Industry standards prevail over
inconsistent industry codes..... 141
Division 8—Service
provider determinations 142
151....... Service provider determinations............................................... 142
152....... Exemptions from service provider
determinations.................... 143
153....... Compliance with service provider
rules.................................... 144
154....... Remedial directions—breach of
service provider rules............. 144
155....... Formal warnings—breach of service
provider rules.................. 144
Division 9—Federal
Court orders 145
156....... Federal Court may order a person
to cease providing a social media service 145
157....... Federal Court may order a person
to cease providing a relevant electronic service................................................................................................. 145
158....... Federal Court may order a person
to cease providing a designated internet service................................................................................................. 146
159....... Federal Court may order a person
to cease supplying an internet carriage service................................................................................................. 147
Division 10—Commissioner
may obtain advice from the Classification Board 148
160....... Commissioner may obtain advice
from the Classification Board 148
Part 10—Enforcement 150
161....... Simplified outline of this Part................................................... 150
162....... Civil penalty provision............................................................. 150
163....... Infringement notices................................................................. 151
164....... Enforceable undertakings......................................................... 153
165....... Injunctions................................................................................ 154
Part 11—Administrative
provisions relating to the Commissioner 156
Division 1—Introduction 156
166....... Simplified outline of this Part................................................... 156
Division 2—Appointment
of the Commissioner 157
167....... Appointment of the Commissioner........................................... 157
168....... Period of appointment for the
Commissioner........................... 157
169....... Acting appointments................................................................. 157
170....... Application of finance law....................................................... 158
Division 3—Terms
and conditions for the Commissioner 159
171....... Remuneration and allowances.................................................. 159
172....... Leave of absence...................................................................... 159
173....... Outside employment................................................................. 159
174....... Disclosure of interests to the
Minister....................................... 159
175....... Resignation............................................................................... 160
176....... Termination of appointment..................................................... 160
177....... Other terms and conditions....................................................... 161
Division 4—Other matters 162
178....... Supplementary powers............................................................. 162
179....... Commissioner’s liabilities are
Commonwealth liabilities.......... 162
180....... Commissioner has privileges and
immunities of the Crown...... 162
181....... Delegation by the Commissioner to
a member of the staff of the ACMA etc. 163
182....... Delegation by the Commissioner to
a contractor engaged by the Commissioner................................................................................................. 163
183....... Annual report........................................................................... 165
183A..... Advisory committees................................................................ 168
184....... Assistance to the Commissioner............................................... 169
185....... Contractors engaged by the
Commissioner............................... 170
186....... Commissioner not subject to
direction by the ACMA etc......... 171
187....... Consultants............................................................................... 171
188....... Minister may give directions to
the Commissioner.................... 171
Part 12—Online
Safety Special Account 172
189....... Simplified outline of this Part................................................... 172
190....... Online Safety Special Account................................................. 172
191....... Credits to the Account.............................................................. 172
192....... Purposes of the Account........................................................... 173
Part 13—Information‑gathering
powers 174
193....... Simplified outline of this Part................................................... 174
194....... Commissioner may obtain end‑user
identity information or contact details 174
195....... Compliance with notice............................................................ 175
196....... Self‑incrimination..................................................................... 175
Part 14—Investigative
powers 177
197....... Simplified outline of this Part................................................... 177
198....... Application of this Part............................................................. 177
199....... Notice requiring appearance for
examination........................... 177
200....... Examination on oath or
affirmation.......................................... 177
201....... Examination to take place in
private......................................... 178
202....... Record to be made of examination........................................... 178
203....... Production of documents for
inspection................................... 178
204....... Protection of persons giving
evidence...................................... 179
205....... Non‑compliance with requirement
to give evidence................. 179
Part 15—Disclosure of information 181
206....... Simplified outline of this Part................................................... 181
207....... Scope........................................................................................ 181
208....... Disclosure to Minister............................................................... 181
209....... Disclosure to Secretary, or APS
employees, for advising the Minister 181
210....... Disclosure to a member of the
staff of the ACMA etc.............. 181
211....... Disclosure to Royal Commissions............................................ 182
212....... Disclosure to certain authorities................................................ 182
213....... Disclosure to teachers or school
principals............................... 184
214....... Disclosure to parents or
guardians............................................ 184
215....... Disclosure with consent............................................................ 184
216....... Disclosure of publicly available
information............................ 185
217....... Disclosure of summaries and
statistics...................................... 185
218....... Relationship with Parts 13
and 15 of the Telecommunications Act 1997 185
Part 16—Miscellaneous 186
219....... Simplified outline of this Part................................................... 186
220....... Review of decisions by the
Administrative Review Tribunal.... 186
220A..... Internal review of decisions...................................................... 190
221....... Protection from civil proceedings............................................. 191
222....... Liability for damages................................................................ 192
222A..... Liability for damages—Information
Commissioner.................. 192
223....... Protection from criminal proceedings—Commissioner,
Classification Board etc.................................................................................................. 192
224....... Referral of matters to law
enforcement agencies...................... 193
225....... Deferral of action in order to
avoid prejudicing a criminal investigation 194
226....... Copies of material.................................................................... 195
227....... Compensation for acquisition of
property................................ 195
228....... Service of notices by electronic
means..................................... 196
229....... Service of notices on contact
person etc................................... 196
230....... Instruments under this Act may
provide for matters by reference to other instruments............................................................................... 197
231....... This Act does not limit
Schedule 8 to the Broadcasting Services
Act 1992 199
232....... This Act does not limit the Telecommunications Act 1997........ 199
233....... Implied freedom of political
communication............................ 199
234....... Concurrent operation of State and
Territory laws..................... 199
235....... Liability of Australian hosting
service providers and internet service providers under State and Territory laws
etc............................................. 199
236....... This Act not to affect
performance of State or Territory functions 201
237....... Revocation or variation of
instruments..................................... 201
238....... Provider of social media service,
age‑restricted social media platform, relevant electronic service, designated
internet service or app distribution service 201
239....... Extended meaning of use......................................................... 202
239A..... Review of operation of this Act................................................ 202
239B..... Review of social media minimum age framework.................... 203
240....... Legislative rules........................................................................ 203
Endnotes 204
Endnote 1—About the
endnotes 204
Endnote
2—Abbreviation key 206
Endnote
3—Legislation history 207
Endnote 4—Amendment
history 208
Endnote 5—Editorial
changes 210
An Act relating to online safety for
Australians, and for other purposes
This
Act is the Online Safety Act 2021.
(1) Each provision of this Act specified in column
1 of the table commences, or is taken to have commenced, in accordance with
column 2 of the table. Any other statement in column 2 has effect according to
its terms.
|
Commencement information |
||
|
Column 1 |
Column 2 |
Column 3 |
|
Provisions |
Commencement |
Date/Details |
|
1.
The whole of this Act |
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 this Act receives
the Royal Assent, they commence on the day after the end of that period. |
23 January 2022 |
Note: This
table relates only to the provisions of this Act as originally enacted. It will
not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is
not part of this Act. Information may be inserted in this column, or information
in it may be edited, in any published version of this Act.
The
objects of this Act are:
(a) to improve online safety for Australians; and
(b) to promote online safety for Australians.
4
Simplified outline of this Act
• There is to be an eSafety Commissioner.
• The functions of the Commissioner include:
(a) promoting
online safety for Australians; and
(b) administering
a complaints system for cyber‑bullying material targeted at an Australian
child; and
(c) administering
a complaints system for cyber‑abuse material targeted at an Australian adult;
and
(d) administering
a complaints and objections system for non‑consensual sharing of intimate
images; and
(e) administering
the online content scheme; and
(f) coordinating
activities of Commonwealth Departments, authorities and agencies relating to
online safety for Australians.
• The complaints system for cyber‑bullying material targeted at an
Australian child includes the following components:
(a) the
provider of a social media service, a relevant electronic service or a
designated internet service may be given a notice (a removal notice) requiring
the removal from the service of cyber‑bullying material targeted at an
Australian child;
(b) a
hosting service provider who hosts cyber‑bullying material targeted at an
Australian child may be given a notice (a removal notice) requiring the
provider to cease hosting the material;
(c) a
person who posts cyber‑bullying material targeted at an Australian child may be
given a notice (an end‑user notice) requiring the person to remove the material,
refrain from posting cyber‑bullying material or apologise for posting the
material.
• The complaints system for cyber‑abuse material targeted at an
Australian adult includes the following components:
(a) the
provider of a social media service, a relevant electronic service or a
designated internet service may be given a notice (a removal notice) requiring
the removal from the service of cyber‑abuse material targeted at an Australian
adult;
(b) a
person who posts cyber‑abuse material targeted at an Australian adult may be
given a notice (a removal notice) requiring the person to remove the material;
(c) a
hosting service provider who hosts cyber‑abuse material targeted at an Australian
adult may be given a notice (a removal notice) requiring the
provider to cease hosting the material.
• The complaints and objections system for
non‑consensual sharing of intimate images includes the following components:
(a) a
person who posts, or threatens to post, an intimate image may be liable to a
civil penalty;
(b) the
provider of a social media service, relevant electronic service or designated
internet service may be given a notice (a removal notice) requiring the
provider to remove an intimate image from the service;
(c) an
end‑user of a social media service, relevant electronic service or designated
internet service who posts an intimate image on the service may be given a
notice (a removal notice) requiring the end‑user to remove the image from
the service;
(d) a
hosting service provider who hosts an intimate image may be given a notice (a removal
notice) requiring the provider to cease hosting the image.
• The online content scheme includes the
following components:
(a) the
provider of a social media service, relevant electronic service or designated
internet service may be given a notice (a removal notice) requiring the
provider to remove certain material;
(b) a
hosting service provider may be given a notice (a removal notice)
requiring the provider to cease hosting certain material;
(c) the
provider of an internet search engine service may be given a notice (a link
deletion notice) requiring the provider to cease providing a link to
certain material;
(d) the
provider of an app distribution service may be given a notice (an app
removal notice) requiring the provider to cease enabling end‑users to
download an app that facilitates the posting of certain material on a social
media service, relevant electronic service or designated internet service;
(e) bodies
and associations that represent sections of the online industry may develop
industry codes;
(f) the
Commissioner may make an industry standard;
(g) the
Commissioner may make service provider determinations regulating service
providers in the online industry.
• The Minister may determine basic online
safety expectations for social media services, relevant electronic services and
designated internet services.
• An internet service provider may be requested
or required to block access to:
(a) material
that promotes abhorrent violent conduct; or
(b) material
that incites abhorrent violent conduct; or
(c) material
that instructs in abhorrent violent conduct; or
(d) material
that depicts abhorrent violent conduct.
• There are age restrictions for certain
social media platforms. A provider of such a platform must take reasonable
steps to prevent children who have not reached a minimum age from having
accounts.
In
this Act:
abhorrent
violent conduct has the same meaning as in
Subdivision H of Division 474 of the Criminal
Code.
access includes:
(a) access that is subject to a pre‑condition (for
example, the use of a password); and
(b) access by way of push technology; and
(c) access by way of a standing request.
access‑control system,
in relation to material, means a system under which:
(a) persons seeking access to the material have a
password, or a Personal Identification Number, that provides a means of
limiting access by other persons to the material; or
(b) persons seeking access to the material have
been provided with some other means of limiting access by other persons to the
material.
account includes:
(a) a free account; and
(b) a pre‑paid account; and
(c) anything that may reasonably be regarded as
the equivalent of an account.
ACMA means the
Australian Communications and Media Authority.
adult means an
individual who is 18 or older.
age‑restricted social media platform has the meaning given by section 63C.
age‑restricted user
means an Australian child who has not reached 16 years.
app includes a
computer program.
app distribution service means a service that enables end‑users to download apps, where the
download of the apps is by means of a carriage service.
app removal notice
means a notice given under section 128.
Appropriation Act
means an Act appropriating money for expenditure out of the Consolidated
Revenue Fund.
Australia, when used
in a geographical sense, includes all the external Territories.
Australian adult means
an adult who is ordinarily resident in Australia.
Australian child means
a child who is ordinarily resident in Australia.
Australian hosting service provider means a person who provides a hosting service that involves hosting
material in Australia.
Australian police force means:
(a) the Australian Federal Police; or
(b) the police force of a State or Territory.
Australians means
individuals who are ordinarily resident in Australia.
basic online safety expectations has the meaning given by section 45.
blocking notice means
a notice under section 99.
blocking request means
a request under section 95.
broadcasting service
has the same meaning as in the Broadcasting
Services Act 1992.
carriage service has
the same meaning as in the Telecommunications Act 1997.
child means an
individual who has not reached 18 years.
civil proceeding
includes a civil action.
class 1 material has
the meaning given by section 106.
class 2 material has
the meaning given by section 107.
Classification Board
means the Classification Board established by the Classification (Publications, Films and Computer Games) Act 1995.
Commissioner means the
eSafety Commissioner.
Note: See
section 26.
computer game has the
same meaning as in the Classification
(Publications, Films and Computer Games) Act 1995.
consent, when used in
relation to an intimate image or private sexual material, has the meaning given
by section 21.
Convention on the Rights of the Child means the Convention on the Rights of the Child done at New York on
20 November 1989.
Note: The
Convention is in Australian Treaty Series 1991 No. 4 ([1991] ATS 4) and
could in 2021 be viewed in the Australian Treaties Library on the AustLII
website (http://www.austlii.edu.au).
court/tribunal proceedings means words spoken and acts done in the course of, or for purposes
of or incidental to, the transacting of the business of a court or a tribunal,
and includes:
(a) evidence given before the court or tribunal;
and
(b) a document presented or submitted to the court
or tribunal; and
(c) a document issued or published by, or with the
authority of, the court or tribunal.
cyber‑abuse material targeted at an Australian adult has the meaning given by section 7.
cyber‑bullying material targeted at an Australian
child has the meaning given by section 6.
data storage device
means any article or material (for example, a disk or file server) from which
information is capable of being reproduced, with or without the aid of any
other article or device.
de‑identified:
information is de‑identified if the information is no longer about:
(a) an identifiable individual; or
(b) an individual who is reasonably identifiable.
designated internet service has the meaning given by section 14.
electronic message has
the same meaning as in the Spam Act 2003.
electronic service
means:
(a) a service that allows end‑users to access
material using a carriage service; or
(b) a service that delivers material to persons
having equipment appropriate for receiving that material, where the delivery of
the service is by means of a carriage service;
but does not include:
(c) a broadcasting service; or
(d) a datacasting service (within the meaning of
the Broadcasting Services Act 1992).
end‑user notice means
a notice under subsection 70(1).
engage in conduct
means:
(a) do an act; or
(b) omit to perform an act.
exempt court/tribunal content service means a service to the extent to which it delivers, or provides
access to, material that consists of court/tribunal proceedings.
exempt official‑inquiry content service means a service to the extent to which it delivers, or provides
access to, material that consists of official‑inquiry proceedings.
exempt Parliamentary content service means a service to the extent to which it delivers, or provides
access to, material that consists of Parliamentary proceedings.
exempt provision of an
intimate image has the meaning given by section 86.
Federal Court means
the Federal Court of Australia.
film has the same
meaning as in the Classification
(Publications, Films and Computer Games) Act 1995.
hosting service has
the meaning given by section 17.
hosting service provider means a person who provides a hosting service.
immediate circle has
the same meaning as in the Telecommunications
Act 1997.
internet carriage service
means a listed carriage service that enables end‑users to access the internet.
internet service provider has the meaning given by section 19.
intimate image has the
meaning given by section 15.
legislative rules
means rules made under section 240.
link deletion notice
means a notice given under section 124.
listed carriage service has the same meaning as in the Telecommunications
Act 1997.
material means
material:
(a) whether in the form of text; or
(b) whether in the form of data; or
(c) whether in the form of speech, music or other
sounds; or
(d) whether in the form of visual images (moving
or otherwise); or
(e) whether in any other form; or
(f) whether in any combination of forms.
material that depicts abhorrent violent conduct has the meaning given by section 9.
National Classification Code means the Code (within the meaning of the Classification (Publications, Films and Computer Games) Act 1995).
non‑consensual intimate image of a person has the meaning given by section 16.
objection notice means
a notice under section 33.
official‑inquiry proceedings means words spoken and acts done in the course of, or for purposes
of or incidental to, the transacting of the business of:
(a) a Royal Commission; or
(b) an official inquiry;
and includes:
(c) evidence given before the Royal Commission or
official inquiry; and
(d) a document presented or submitted to the Royal
Commission or official inquiry; and
(e) a document issued or published by, or with the
authority of, the Royal Commission or official inquiry.
on‑demand program service has the meaning given by section 18.
online safety for Australians means the capacity of Australians to use social media services and
electronic services in a safe manner.
online safety for children means the capacity of Australian children to use social media
services and electronic services in a safe manner, and includes the protection
of Australian children using those services from cyber‑bullying material
targeted at an Australian child.
Online Safety Special Account means the Online Safety Special Account referred to in section 190.
parent: without
limiting who is a parent of anyone for the purposes of this Act, a person is
the parent of another person if the other person is a child of the person
within the meaning of the Family Law Act
1975.
Parliamentary proceedings means words spoken and acts done in the course of, or for purposes
of or incidental to, the transacting of the business of:
(a) a Parliament; or
(b) a legislature; or
(c) a committee of a Parliament or legislature;
and includes:
(d) evidence given before the Parliament,
legislature or committee; and
(e) a document presented or submitted to the
Parliament, legislature or committee; and
(f) a document issued or published by, or with the
authority of, the Parliament, legislature or committee.
point‑to‑multipoint service means a carriage service which allows a person to transmit material
to more than one end‑user simultaneously.
posted by an end‑user
of a social media service, relevant electronic service or designated internet
service has the meaning given by section 11.
Note: Other
parts of speech and grammatical forms of “posted” (for example, “post”) have a
corresponding meaning (see section 18A of the Acts Interpretation Act 1901).
private sexual material means:
(a) material that:
(i) depicts a person who is, or appears to be, 18
years of age or older and who is engaged in, or appears to be engaged in, a
sexual pose or sexual activity (whether or not in the presence of other persons);
and
(ii) does so in circumstances that reasonable
persons would regard as giving rise to an expectation of privacy; or
(b) material the dominant characteristic of which
is the depiction of:
(i) a sexual organ or the anal region of a person
who is, or appears to be, 18 years of age or older; or
(ii) if a person is a female person, or a
transgender or intersex person, who is, or appears to be, 18 years of age or
older—either or both of the person’s breasts;
where
the depiction is in circumstances that reasonable persons would regard as
giving rise to an expectation of privacy.
provided on a social
media service, relevant electronic service or designated internet service has
the meaning given by section 10.
provider of a social
media service, age‑restricted social media platform, relevant electronic
service, designated internet service or app distribution service has a meaning
affected by section 238.
publication has the
same meaning as in the Classification
(Publications, Films and Computer Games) Act 1995. Despite section 18A
of the Acts Interpretation Act 1901,
this definition does not affect the meaning of the expressions publish
or published
when used in this Act.
relevant electronic service has the meaning given by section 13A.
remedial notice means
a notice given under section 119 or 120.
removal notice means a
notice under:
(a) section 65; or
(b) section 66; or
(c) section 77; or
(d) section 78; or
(e) section 79; or
(f) section 88; or
(g) section 89; or
(h) section 90; or
(i) section 109; or
(j) section 110; or
(k) section 114; or
(l) section 115.
removed from a social
media service, relevant electronic service or designated internet service has
the meaning given by section 12.
restricted access system has the meaning given by section 108.
Secretary means the
Secretary of the Department.
serious harm means
serious physical harm or serious harm to a person’s mental health,
whether temporary or permanent.
serious harm to a person’s mental
health includes:
(a) serious psychological harm; and
(b) serious distress;
but does not include mere ordinary
emotional reactions such as those of only distress, grief, fear or anger.
service includes a
website.
service provider determination means a determination under section 151.
service provider rule
means each of the rules (if any) set out in a service provider determination.
social media service
has the meaning given by section 13.
stored material means
material kept on a data storage device. For this purpose, disregard any storage
of material on a highly transitory basis as an integral function of the
technology used in its transmission.
Note: Momentary
buffering (including momentary storage in a router in order to resolve a path
for further transmission) is an example of storage on a highly transitory
basis.
target of cyber‑abuse
material has the meaning given by section 7.
target of cyber‑bullying
material has the meaning given by section 6.
terms of use includes
anything that may be reasonably regarded as the equivalent of terms of use.
threat includes a
threat made by any conduct, whether express or implied and whether conditional
or unconditional.
use has a meaning
affected by section 239.
6
Cyber‑bullying material targeted at an Australian child
(1) For the purposes of this Act, if material
satisfies the following conditions:
(a) the material is provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service;
(b) an ordinary reasonable person would conclude
that:
(i) it is likely that the material was intended to
have an effect on a particular Australian child; and
(ii) 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;
(c) such other conditions (if any) as are set out
in the legislative rules;
then:
(d) the material is cyber‑bullying material targeted at
the Australian child; and
(e) the Australian child is the target
of the material.
(2) An effect mentioned in subsection (1) may
be:
(a) a direct result of the material being
accessed by, or delivered to, the Australian child; or
(b) an indirect result of the material
being accessed by, or delivered to, one or more other persons.
(3) Subsection (1) has effect subject to subsection (4).
(4) For the purposes of this Act, if:
(a) a person is:
(i) in a position of authority over an Australian
child; and
(ii) an end‑user of a social media service,
relevant electronic service or designated internet service; and
(b) in the lawful exercise of that authority, the
person posts material on the service; and
(c) the posting of the material is reasonable action
taken in a reasonable manner;
the material is taken not to be cyber‑bullying
material targeted at the Australian child.
7
Cyber‑abuse material targeted at an Australian adult
(1) For the purposes of this Act, if material
satisfies the following conditions:
(a) the material is provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service;
(b) an ordinary reasonable person would conclude
that it is likely that the material was intended to have an effect of causing
serious harm to a particular Australian adult;
(c) an ordinary reasonable person in the position
of the Australian adult would regard the material as being, in all the
circumstances, menacing, harassing or offensive;
(d) such other conditions (if any) as are set out
in the legislative rules;
then:
(e) the material is cyber‑abuse material targeted at
the Australian adult; and
(f) the Australian adult is the target
of the material.
Note: For
serious
harm, see section 5.
(2) An effect mentioned in paragraph (1)(b)
may be:
(a) a direct result of the material being
accessed by, or delivered to, the Australian adult; or
(b) an indirect result of the material being accessed by, or delivered to,
one or more other persons.
8
Determining whether material is offensive
(1) The matters to be taken into account in
deciding for the purposes of this Act whether an ordinary reasonable person in
the position of a particular Australian adult would regard particular material
as being, in all the circumstances, offensive, include:
(a) the standards of morality, decency and
propriety generally accepted by reasonable adults; and
(b) the literary, artistic or educational merit
(if any) of the material; and
(c) the general character of the material
(including whether it is of a medical, legal or scientific character).
(2) If:
(a) material is provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the material is private sexual material;
then, in deciding for the purposes of
this Act whether an ordinary reasonable person in the position of a particular
Australian adult would regard the material as being, in all the circumstances,
offensive, regard must be had to whether the subject, or each of the subjects,
of the private sexual material gave consent to the material being provided on
the service.
(3) Subsection (2) does not limit subsection (1).
9
Material that depicts abhorrent violent conduct
(1) For the purposes of this Act, material
that depicts abhorrent violent conduct means material that is:
(a) audio material; or
(b) visual material; or
(c) audio‑visual material;
that records or streams abhorrent violent
conduct.
(2) For the purposes of subsection (1), it is
immaterial whether the material has been altered.
For
the purposes of this Act, material is provided on a social media service, relevant
electronic service or designated internet service if the material is accessible
to, or delivered to, one or more of the end‑users using the service.
For
the purposes of this Act, material is posted on a social media
service, relevant electronic service or designated internet 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.
For
the purposes of this Act, material is removed from a social media
service, relevant electronic service or designated internet service if the
material is neither accessible to, nor delivered to, any of the end‑users in
Australia using the service.
(1) For the purposes of this Act, social
media service means:
(a) an electronic service that satisfies the
following conditions:
(i) the sole or primary purpose of the service is
to enable online social interaction between 2 or more end‑users;
(ii) the service allows end‑users to link to, or
interact with, some or all of the other end‑users;
(iii) the service allows end‑users to post material
on the service;
(iv) such other conditions (if any) as are set out
in the legislative rules; or
(b) an electronic service specified in the
legislative rules;
but does not include an exempt service
(as defined by subsection (4)).
Note: Online
social interaction does not include (for example) online business interaction.
(2) For the purposes of subparagraph (1)(a)(i),
online social interaction includes online interaction that enables end‑users to
share material for social purposes.
Note: Social
purposes does not include (for example) business purposes.
(3) In determining whether the condition set out
in subparagraph (1)(a)(i) is satisfied, disregard any of the following purposes:
(a) the provision of advertising material on the
service;
(b) the generation of revenue from the provision
of advertising material on the service.
Exempt services
(4) For the purposes of this section, a service is
an exempt
service if:
(a) none of the material on the service is
accessible to, or delivered to, one or more end‑users in Australia; or
(b) the service is specified in the legislative
rules.
13A
Relevant electronic service
(1) For the purposes of this Act, relevant
electronic service means any of the following electronic services:
(a) a service that enables end‑users to
communicate, by means of email, with other end‑users;
(b) an instant messaging service that enables end‑users
to communicate with other end‑users;
(c) an SMS service that enables end‑users to
communicate with other end‑users;
(d) an MMS service that enables end‑users to
communicate with other end‑users;
(e) a chat service that enables end‑users to
communicate with other end‑users;
(f) a service that enables end‑users to play
online games with other end‑users;
(g) an electronic service specified in the
legislative rules;
but does not include an exempt service
(as defined by subsection (2)).
Note 1: SMS
is short for short message service.
Note 2: MMS
is short for multimedia message service.
Exempt services
(2) For the purposes of this section, a service is
an exempt
service if none of the material on the service is accessible to, or
delivered to, one or more end‑users in Australia.
14
Designated internet service
(1) For the purposes of this Act, designated
internet service means:
(a) a service that allows end‑users to access
material using an internet carriage service; or
(b) a service that delivers material to persons
having equipment appropriate for receiving that material, where the delivery of
the service is by means of an internet carriage service;
but does not include:
(c) a social media service; or
(d) a relevant electronic service; or
(e) an on‑demand program service; or
(f) a service specified under subsection (2);
or
(g) an exempt service (as defined by subsection (3)).
(2) The Minister may, by legislative instrument,
specify one or more services for the purposes of paragraph (1)(f).
Exempt services
(3) For the purposes of this section, a service is
an exempt
service if none of the material on the service is accessible to, or
delivered to, one or more end‑users in Australia.
(1) This section sets out the circumstances in
which material is an intimate image of a person for the
purposes of this Act.
Depiction of private parts
(2) Material is an intimate image of a
person if:
(a) the material consists of a still visual image
or moving visual images; and
(b) the material depicts, or appears to depict:
(i) the person’s genital area or anal area
(whether bare or covered by underwear); or
(ii) if the person is a female person or a
transgender or intersex person—either or both of the person’s breasts;
in
circumstances in which an ordinary reasonable person would reasonably expect to
be afforded privacy.
Depiction of private activity
(3) Material is an intimate image of a
person if:
(a) the material consists of a still visual image
or moving visual images; and
(b) the material depicts, or appears to depict,
the person:
(i) in a state of undress; or
(ii) using the toilet; or
(iii) showering; or
(iv) having a bath; or
(v) engaged in a sexual act of a kind not
ordinarily done in public; or
(vi) engaged in any other like activity;
in
circumstances in which an ordinary reasonable person would reasonably expect to
be afforded privacy.
Depiction of person without attire of
religious or cultural significance
(4) Material is an intimate image of a
person if:
(a) the material consists of a still visual image
or moving visual images; and
(b) because of the person’s religious or cultural
background, the person consistently wears particular attire of religious or
cultural significance whenever the person is in public; and
(c) the material depicts, or appears to depict,
the person:
(i) without that attire; and
(ii) in circumstances in which an ordinary
reasonable person would reasonably expect to be afforded privacy.
Interpretative provisions
(5) For the purposes of this section, it is immaterial
whether material has been altered.
(6) For the purposes of this section, if material
depicts, or appears to depict, a part of the body of a person, the material is
taken to depict the person, or to appear to depict the person, as the case
requires.
16
Non‑consensual intimate image of a person
For
the purposes of this Act, if:
(a) an intimate image of a person is provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the person did not consent to the provision of
the intimate image on the service; and
(c) the provision of the intimate image on the
service is not an exempt provision of the intimate image;
the intimate image is a non‑consensual
intimate image of the person.
For
the purposes of this Act, if:
(a) a person (the first person) hosts
stored material that has been provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the first person or another person provides:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service;
on
which the hosted material is provided;
the hosting of the stored material by the
first person is taken to be the provision by the first person of a hosting
service.
(1) For the purposes of this Act, on‑demand
program service means a service:
(a) that is provided to end‑users using an
internet carriage service; and
(b) to the extent to which the service provides
material that is identical to a program that has been, or is being, transmitted
on:
(i) a commercial television broadcasting service
provided under a commercial television broadcasting licence; or
(ii) a subscription television broadcasting service
provided under a subscription television broadcasting licence; or
(iii) a subscription television narrowcasting
service; or
(iv) a television broadcasting service provided by
the Australian Broadcasting Corporation; or
(v) a television broadcasting service provided by
the Special Broadcasting Service Corporation.
(2) For the purposes of subsection (1), in
determining whether material is identical to a program, disregard any
differences that are attributable to the technical characteristics of the
provision or transmission (for example, video resolution or sound quality).
(3) For the purposes of subsection (1), in
determining whether material is identical to a program, disregard the presence
or absence of:
(a) a watermark‑type logo; or
(b) a watermark‑type insignia.
(4) An expression used in paragraph (1)(b)
has the same meaning in that paragraph as it has in the Broadcasting Services Act 1992.
Basic definition
(1) For the purposes of this Act, if a person
supplies, or proposes to supply, an internet carriage service to the public,
the person is an internet service provider.
Declared internet service providers
(2) The Minister may, by legislative instrument,
declare that a specified person who supplies, or proposes to supply, a
specified internet carriage service is an internet service provider for the
purposes of this Act.
Note: For
specification by class, see subsection 13(3) of the Legislation Act 2003.
20
Supply of internet carriage service to the public
(1) This section sets out the circumstances in
which an internet carriage service is taken, for the purposes of section 19,
to be supplied to the public.
(2) If:
(a) an internet carriage service is used for the
carriage of material between 2 end‑users; and
(b) each end‑user is outside the immediate circle
of the supplier of the service;
the service is supplied to the public.
Note: If
a company makes internet material available for access on the internet, and an
individual obtains access to the material using an internet carriage service,
the company and the individual are end‑users in relation to the carriage of the
material by the internet carriage service.
(3) If:
(a) an internet carriage service is used to supply
point‑to‑multipoint services to end‑users; and
(b) at least one end‑user is outside the immediate
circle of the supplier of the service;
the service is supplied to the public.
For
the purposes of the application of this Act to an intimate image or private
sexual material, consent means consent that is:
(a) express; and
(b) voluntary; and
(c) informed;
but does not include:
(d) consent given by a child; or
(e) consent given by an adult who is in a mental
or physical condition (whether temporary or permanent) that:
(i) makes the adult incapable of giving consent;
or
(ii) substantially impairs the capacity of the
adult to give consent.
This
Act binds the Crown in each of its capacities.
(1) This Act extends to every external Territory.
(2) This Act extends to acts, omissions, matters
and things outside Australia.
24
Convention on the Rights of the Child
(1) The Commissioner must, as appropriate, have
regard to the Convention on the Rights of the Child in the performance of
functions:
(a) conferred by or under this Act; and
(b) in relation to Australian children.
(2) Subsection (1) does not limit the matters
to which the Commissioner may have regard.
25
Simplified outline of this Part
• There is to be an eSafety Commissioner.
• The functions of the Commissioner include:
(a) promoting
online safety for Australians; and
(b) administering
a complaints system for cyber‑bullying material targeted at an Australian
child; and
(c) administering
a complaints system for cyber‑abuse material targeted at an Australian adult;
and
(d) administering
a complaints and objections system for non‑consensual sharing of intimate
images; and
(e) administering
the online content scheme; and
(f) coordinating
activities of Commonwealth Departments, authorities and agencies relating to
online safety for Australians; and
(g) performing
various functions relating to the social media minimum age provisions in Part 4A.
Note: For
administrative provisions relating to the
Commissioner, see Part 11.
There
is to be an eSafety Commissioner.
Note: In
this Act, Commissioner means the eSafety Commissioner (see section 5).
27
Functions of the Commissioner
(1) The functions of the Commissioner are:
(a) such functions as are conferred on the
Commissioner by:
(i) this Act; or
(ii) any other law of the Commonwealth; and
(b) to promote online safety for Australians; and
(c) to support and encourage the implementation of
measures to improve online safety for Australians; and
(d) to coordinate activities of Commonwealth
Departments, authorities and agencies relating to online safety for Australians;
and
(e) to collect, analyse, interpret and disseminate
information relating to online safety for Australians; and
(f) to support, encourage, conduct, accredit and
evaluate educational, promotional and community awareness programs that are
relevant to online safety for Australians; and
(g) to make, on behalf of the Commonwealth, grants
of financial assistance in relation to online safety for Australians; and
(h) to support, encourage, conduct and evaluate
research about online safety for Australians; and
(i) to publish (whether on the internet or
otherwise) reports and papers relating to online safety for Australians; and
(j) to give the Minister reports about online
safety for Australians; and
(k) to advise the Minister about online safety for
Australians; and
(l) to consult and cooperate with other persons,
organisations and governments on online safety for Australians; and
(m) to advise and assist persons in relation to
their obligations under this Act; and
(n) to monitor compliance with this Act; and
(o) to promote compliance with this Act; and
(p) to formulate, in writing, guidelines or
statements that:
(i) recommend best practices for persons and
bodies involved in online safety for Australians; and
(ii) are directed towards facilitating the timely
and appropriate resolution of incidents involving material provided on a social
media service, relevant electronic service or designated internet service; and
(q) to promote guidelines and statements
formulated under paragraph (p); and
(qa) to formulate, in writing, guidelines for the
taking of reasonable steps to prevent age‑restricted users having accounts with
age‑restricted social media platforms; and
(qb) to promote guidelines formulated under
paragraph (qa); and
(r) such other functions (if any) as are specified
in the legislative rules; and
(s) to do anything incidental to or conducive to
the performance of any of the above functions.
Grants
(2) Financial assistance may be granted under paragraph (1)(g)
to:
(a) a State; or
(b) a Territory; or
(c) a person other than a State or Territory.
(3) 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.
(4) An agreement under subsection (3) is to
be entered into by the Commissioner on behalf of the Commonwealth.
Guidelines and statements are not
legislative instruments
(5) Guidelines and statements formulated under paragraph (1)(p)
are not legislative instruments.
(6) Guidelines formulated under
paragraph (1)(qa) are not legislative instruments.
The
Commissioner has power to do all things necessary or convenient to be done for
or in connection with the performance of the Commissioner’s functions.
Note: For
supplementary powers, see section 178.
Part 3—Complaints, objections and investigations
29
Simplified outline of this Part
• There is a complaints system for cyber‑bullying material targeted at
an Australian child.
• There is a complaints and objections
system for non‑consensual sharing of intimate images.
• There is a complaints system for cyber‑abuse material targeted at an
Australian adult.
• There is a complaints system relating to the online content scheme.
Division 2—Complaints about cyber‑bullying material targeted at an
Australian child
30
Complaints about cyber‑bullying material
Complaint made by an Australian child
(1) If an Australian child has reason to believe
that the child was or is the target of cyber‑bullying material that has been,
or is being, provided on:
(a) a particular social media service; or
(b) a particular relevant electronic service; or
(c) a particular designated internet service;
the child may make a complaint to the
Commissioner about the matter.
Complaint made on behalf of an
Australian child
(2) If:
(a) a person (the responsible person)
has reason to believe that cyber‑bullying material targeted at an Australian
child has been, or is being, provided on:
(i) a particular social media service; or
(ii) a particular relevant electronic service; or
(iii) a particular designated internet service; and
(b) either:
(i) the responsible person is a parent or guardian
of the child; or
(ii) the child has authorised the responsible
person to make a complaint about the matter;
the responsible person may, on behalf of
the child, make a complaint to the Commissioner about the matter.
Complaint made by an adult who was an
Australian child
(3) If:
(a) a person is an adult; and
(b) the person has reason to believe that, when the
person was an Australian child, the person was the target of cyber‑bullying
material that was provided on:
(i) a particular social media service; or
(ii) a particular relevant electronic service; or
(iii) a particular designated internet service;
the person may make a complaint to the
Commissioner about the matter, so long as:
(c) the complaint is made within a reasonable time
after the person became aware of the matter; and
(d) the complaint is made within 6 months after
the person reached 18 years.
Complaint previously made to the
service provider
(4) If:
(a) a complaint made by a person under this
section concerns material that has been, or is being, provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the person wants the Commissioner to give the
provider of the service a section 65 removal notice requiring the provider
to remove the material from the service;
the complaint under this section must be
accompanied by evidence that the material was the subject of a complaint that
was previously made to the provider of the service.
(5) For the purposes of subsection (4),
evidence must be in a form required by the Commissioner.
(6) If:
(a) a social media service; or
(b) a relevant electronic service; or
(c) a designated internet service;
issues a receipt or complaint number to a
complainant as part of its ordinary business processes, the Commissioner may
require evidence to be in the form of the receipt or complaint number.
(7) If:
(a) a social media service; or
(b) a relevant electronic service; or
(c) a designated internet service;
does not issue a receipt or complaint
number to a complainant as part of its ordinary business processes, the Commissioner
may require evidence to be:
(d) in the form of a screen shot; or
(e) in the form of a statutory declaration; or
(f) in such other form as the Commissioner
specifies.
(8) Subsections (6) and (7) do not limit subsection (5).
(9) A requirement under subsection (5), (6)
or (7) is not a legislative instrument.
31
Investigation of complaints
(1) The Commissioner may investigate a complaint
made under section 30.
(2) An investigation under this section is to be
conducted as the Commissioner thinks fit.
(3) The Commissioner may, for the purposes of an
investigation, obtain information from such persons, and make such inquiries,
as the Commissioner thinks fit.
(4) Subsections (1), (2) and (3) have effect
subject to Part 14 (which confers certain investigative powers on the
Commissioner).
Termination of investigation
(5) The Commissioner may terminate an
investigation under this section.
Division 3—Complaints about, and objections to, intimate images
Complaint made by a person depicted in
an intimate image
(1) If a person has reason to believe that section 75
has been contravened in relation to an intimate image of the person, the person
may make a complaint to the Commissioner about the matter.
(2) If the complainant is not able to identify the
person who allegedly contravened section 75, the complainant must make a
statement to the Commissioner to that effect.
Complaint made on behalf of a person
depicted in an intimate image
(3) If a person (the authorised person) has
reason to believe that section 75 has been contravened in relation to an
intimate image of another person (the depicted person), the authorised
person may, on behalf of the depicted person, make a complaint to the
Commissioner about the matter, so long as:
(a) the depicted person has authorised the
authorised person to make a complaint about the matter; or
(b) both:
(i) the depicted person is a child who has not
reached 16 years; and
(ii) the authorised person is a parent or guardian
of the depicted person; or
(c) both:
(i) the depicted person is in a mental or physical
condition (whether temporary or permanent) that makes the depicted person
incapable of managing the depicted person’s affairs; and
(ii) the authorised person is a parent or guardian
of the depicted person.
(4) The authorised person must make a declaration
to the Commissioner to the effect that the authorised person is entitled to
make the complaint on behalf of the depicted person.
(5) If the authorised person is not able to identify
the person who allegedly contravened section 75, the authorised person
must make a statement to the Commissioner to that effect.
Objection notice given by a person
depicted in an intimate image
(1) If a person (the depicted person) has
reason to believe that:
(a) an intimate image of the depicted person is,
or has been, provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the provision of the intimate image on the
service is not an exempt provision of the intimate image; and
(c) any of the following conditions is satisfied:
(i) the depicted person is ordinarily resident in
Australia;
(ii) if the intimate image was posted on the
service by an end‑user of the service—the end‑user is ordinarily resident in
Australia;
(iii) the intimate image is hosted in Australia by a
hosting service;
the depicted person may give the
Commissioner a notice (an objection notice) objecting to the
provision of the intimate image on the service.
(2) The depicted person may give the objection
notice even if the depicted person previously consented to the provision of the
intimate image on the service.
Objection notice given on behalf of a
person depicted in an intimate image
(3) If a person (the authorised person) has
reason to believe that:
(a) an intimate image of another person (the depicted
person) is, or has been, provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the provision of the intimate image on the
service is not an exempt provision of the intimate image; and
(c) any of the following conditions is satisfied:
(i) the depicted person is ordinarily resident in
Australia;
(ii) if the intimate image was posted on the
service by an end‑user of the service—the end‑user is ordinarily resident in
Australia;
(iii) the intimate image is hosted in Australia by a
hosting service;
the authorised person may, on behalf of
the depicted person, give the Commissioner a notice (an objection notice)
objecting to the provision of the intimate image on the service, so long as:
(d) the depicted person has authorised the
authorised person to give the objection notice; or
(e) both:
(i) the depicted person is a child who has not
reached 16 years; and
(ii) the authorised person is a parent or guardian
of the depicted person; or
(f) both:
(i) the depicted person is in a mental or physical
condition (whether temporary or permanent) that makes the depicted person
incapable of managing the depicted person’s affairs; and
(ii) the authorised person is a parent or guardian
of the depicted person.
(4) The authorised person must make a declaration
to the Commissioner to the effect that the authorised person is entitled to
give the objection notice on behalf of the depicted person.
(5) The authorised person may give the objection
notice even if the depicted person previously consented to the provision of the
intimate image on the service.
34
Investigation of complaints
(1) The Commissioner may investigate a complaint
made to the Commissioner under section 32.
(2) An investigation under this section is to be
conducted as the Commissioner thinks fit.
(3) The Commissioner may, for the purposes of an
investigation, obtain information from such persons, and make such inquiries,
as the Commissioner thinks fit.
(4) Subsections (1), (2) and (3) have effect
subject to Part 14 (which confers certain investigative powers on the
Commissioner).
Termination of investigation
(5) The Commissioner may terminate an
investigation under this section.
35
Commissioner’s response to objection notices
If
an objection notice is given to the Commissioner under section 33 in
relation to an intimate image, the Commissioner may consider whether to give a
removal notice in relation to the intimate image.
Division 4—Complaints about cyber‑abuse material targeted at an
Australian adult
36
Complaints about cyber‑abuse material
Complaint made by an Australian adult
(1) If an Australian adult has reason to believe
that the adult was or is the target of cyber‑abuse material that has been, or
is being, provided on:
(a) a particular social media service; or
(b) a particular relevant electronic service; or
(c) a particular designated internet service;
the adult may make a complaint to the
Commissioner about the matter.
Complaint made on behalf of an
Australian adult
(2) If:
(a) a person (the responsible person)
has reason to believe that cyber‑abuse material targeted at an Australian adult
has been, or is being, provided on:
(i) a particular social media service; or
(ii) a particular relevant electronic service; or
(iii) a particular designated internet service; and
(b) the adult has authorised the responsible
person to make a complaint about the matter;
the responsible person may, on behalf of
the adult, make a complaint to the Commissioner about the matter.
Complaint about material that was
provided on a service
(3) If:
(a) a complaint made by a person under this
section concerns material that has been, or is being, provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the person wants the Commissioner to give the
provider of the service a removal notice under section 88 requiring the
provider to remove the material from the service;
the complaint under this section must be
accompanied by evidence that the material was the subject of a complaint that
was previously made to the provider of the service.
(4) For the purposes of subsection (3),
evidence must be in a form required by the Commissioner.
(5) If:
(a) a social media service; or
(b) a relevant electronic service; or
(c) a designated internet service;
issues a receipt or complaint number to a
complainant as part of its ordinary business processes, the Commissioner may
require evidence to be in the form of the receipt or complaint number.
(6) If:
(a) a social media service; or
(b) a relevant electronic service; or
(c) a designated internet service;
does not issue a receipt or complaint
number to a complainant as part of its ordinary business processes, the
Commissioner may require evidence to be:
(d) in the form of a screen shot; or
(e) in the form of a statutory declaration; or
(f) in such other form as the Commissioner
specifies.
(7) Subsections (5) and (6) do not limit subsection (4).
(8) A requirement under subsection (4), (5)
or (6) is not a legislative instrument.
37
Investigation of complaints
(1) The Commissioner may investigate a complaint
made under section 36.
(2) An investigation under this section is to be
conducted as the Commissioner thinks fit.
(3) The Commissioner may, for the purposes of an
investigation, obtain information from such persons, and make such inquiries,
as the Commissioner thinks fit.
(4) Subsections (1), (2) and (3) have effect
subject to Part 14 (which confers certain investigative powers on the
Commissioner).
Termination of investigation
(5) The Commissioner may terminate an
investigation under this section.
Division 5—Complaints relating to the online content scheme
38
Complaints about class 1 material or class 2 material
(1) If a person has reason to believe that end‑users
in Australia can access:
(a) class 1 material that is provided on:
(i) a particular social media service; or
(ii) a particular relevant electronic service; or
(iii) a particular designated internet service; or
(b) class 2 material that is covered by paragraph 107(1)(a),
(b), (c), (d) or (e) and provided on:
(i) a particular social media service; or
(ii) a particular relevant electronic service; or
(iii) a particular designated internet service;
the person may make a complaint to the
Commissioner about the matter.
(2) If a person has reason to believe that:
(a) end‑users in Australia can access class 2
material that is covered by paragraph 107(1)(f), (g), (h), (i), (j), (k)
or (l) and provided on:
(i) a particular social media service; or
(ii) a particular relevant electronic service; or
(iii) a particular designated internet service; and
(b) access to the material is not subject to a
restricted access system;
the person may make a complaint to the
Commissioner about the matter.
39
Complaints relating to breach of a service provider rule etc.
If
a person (the first person) has reason to believe that another person has:
(a) breached a service provider rule that applies
to the other person; or
(b) breached a civil penalty provision of Part 9
(which deals with the online content scheme);
the first person may make a complaint to
the Commissioner about the matter.
40
Complaints relating to breach of an industry code etc.
If
a person has reason to believe that a participant in the online industry
(within the meaning of Division 7 of Part 9) has breached:
(a) a code registered under that Division that is
applicable to the participant; or
(b) an industry standard registered under that
Division that is applicable to the participant;
the person may make a complaint to the
Commissioner about the matter.
41
Residency etc. of complainant
A
person is not entitled to make a complaint under this Division unless the
person is:
(a) an individual who resides in Australia; or
(b) a body corporate that carries on activities in
Australia; or
(c) the Commonwealth, a State or a Territory.
42
Commissioner may investigate matters
(1) The Commissioner may, on the Commissioner’s
own initiative or in response to a complaint made under section 38, 39 or 40,
investigate any of the following matters if the Commissioner thinks that it is
desirable to do so:
(a) whether end‑users in Australia can access
class 1 material that is provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service;
(b) whether end‑users in Australia can access
class 2 material that is covered by paragraph 107(1)(a), (b), (c), (d) or
(e) and provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service;
(c) whether end‑users in Australia can access
class 2 material that is covered by paragraph 107(1)(f), (g), (h), (i),
(j), (k) or (l) and provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service;
and,
if so, whether access to the material is subject to a restricted access system;
(d) whether a person has breached a service
provider rule that applies to the person;
(e) whether a person has breached a civil penalty
provision of Part 9 (which deals with the online content scheme);
(f) whether a participant in the online industry
(within the meaning of Division 7 of Part 9) has breached a code
registered under that Division that is applicable to the participant;
(g) whether a participant in the online industry
(within the meaning of Division 7 of Part 9) has breached an industry
standard registered under that Division that is applicable to the participant.
(2) An investigation under this section is to be
conducted as the Commissioner thinks fit.
(3) The Commissioner may, for the purposes of an
investigation, obtain information from such persons, and make such inquiries,
as the Commissioner thinks fit.
(4) This section has effect subject to Part 14
(which confers certain investigative powers on the Commissioner).
43
Commissioner may refuse to investigate certain matters
(1) If:
(a) a person has made a complaint under section 38,
39 or 40; and
(b) the complaint is about a particular matter;
and
(c) the person could have made a complaint about
the matter under:
(i) an industry code registered under Division 7
of Part 9; or
(ii) an industry standard determined under Division 7
of Part 9;
the Commissioner may refuse to
investigate the matter.
(2) Subsection (1) does not, by implication,
limit the circumstances in which the Commissioner may refuse to investigate a
matter.
Part 4—Basic online safety expectations
44
Simplified outline of this Part
• The Minister may determine basic online
safety expectations for social media services, relevant electronic services and
designated internet services.
• The provider of a social media service,
relevant electronic service or designated internet service may be required to
give the Commissioner reports about compliance with the applicable basic online
safety expectations.
Division 2—Basic online safety expectations
45
Basic online safety expectations
Social media service
(1) The Minister may, by legislative instrument,
determine that the basic online safety expectations for a social media service
are the expectations specified in the determination.
Relevant electronic service
(2) The Minister may, by legislative instrument,
determine that the basic online safety expectations for each relevant
electronic service included in a class of relevant electronic services
specified in the determination are the expectations specified in the
determination.
Designated internet service
(3) The Minister may, by legislative instrument,
determine that the basic online safety expectations for each designated
internet service included in a class of designated internet services specified
in the determination are the expectations specified in the determination.
Determination does not impose a
legally enforceable duty
(4) A determination under this section does not
impose a duty that is enforceable by proceedings in a court.
(1) A determination under section 45 must
specify each of the following expectations:
(a) the expectation that the provider of the
service will take reasonable steps to ensure that end‑users are able to use the
service in a safe manner;
(b) the expectation that, in determining what are
such reasonable steps, the provider will consult the Commissioner;
(c) the expectation that the provider of the
service will take reasonable steps to minimise the extent to which the
following material is provided on the service:
(i) cyber‑bullying material targeted at an
Australian child;
(ii) cyber‑abuse material targeted at an Australian
adult;
(iii) a non‑consensual intimate image of a person;
(iv) class 1 material;
(v) material that promotes abhorrent violent
conduct;
(vi) material that incites abhorrent violent
conduct;
(vii) material that instructs in abhorrent violent
conduct;
(viii) material that depicts abhorrent violent
conduct;
(d) the expectation that the provider of the
service will take reasonable steps to ensure that technological or other measures
are in effect to prevent access by children to class 2 material provided on the
service;
(e) the expectation that the provider of the
service will ensure that the service has clear and readily identifiable
mechanisms that enable end‑users to report, and make complaints about, any of
the following material provided on the service:
(i) cyber‑bullying material targeted at an
Australian child;
(ii) cyber‑abuse material targeted at an Australian
adult;
(iii) a non‑consensual intimate image of a person;
(iv) class 1 material;
(v) class 2 material;
(vi) material that promotes abhorrent violent
conduct;
(vii) material that incites abhorrent violent
conduct;
(viii) material that instructs in abhorrent violent
conduct;
(ix) material that depicts abhorrent violent
conduct;
(f) the expectation that the provider of the
service will ensure that the service has clear and readily identifiable
mechanisms that enable end‑users to report, and make complaints about, breaches
of the service’s terms of use;
(g) the expectation that, if the Commissioner, by
written notice given to the provider of the service, requests the provider to
give the Commissioner a statement that sets out the number of complaints made
to the provider during a specified period (not shorter than 6 months) about
breaches of the service’s terms of use, the provider will comply with the
request within 30 days after the notice of request is given;
(h) the expectation that, if the Commissioner, by
written notice given to the provider of the service, requests the provider to
give the Commissioner a statement that sets out, for each removal notice given
to the provider during a specified period (not shorter than 6 months), how long
it took the provider to comply with the removal notice, the provider will
comply with the request within 30 days after the notice of request is given;
(i) the expectation that, if the Commissioner, by
written notice given to the provider of the service, requests the provider to
give the Commissioner specified information relating to the measures taken by
the provider to ensure that end‑users are able to use the service in a safe
manner, the provider will comply with the request within 30 days after the
notice of request is given.
Note 1: For
non‑consensual
intimate image of a person, see section 16.
Note 2: Section 104
provides for exemptions for the following material:
(a) material
that promotes abhorrent violent conduct;
(b) material
that incites abhorrent violent conduct;
(c) material
that instructs in abhorrent violent conduct;
(d) material
that depicts abhorrent violent conduct.
(2) Subsection (1) does not limit the
expectations that may be specified in a determination under section 45.
(1) Before making or varying a determination under
section 45, the Minister must:
(a) make a copy of the draft available on the
Department’s website; and
(b) publish a notice on the Department’s website:
(i) stating that the Minister has prepared a draft
of the determination or variation; and
(ii) inviting interested persons to give written
comments about the draft to the Minister within the period specified in the
notice.
(2) The period specified in the notice must run
for at least 30 days after the publication of the notice.
(3) Subsection (1) does not apply to a
variation if the variation is of a minor nature.
(4) If interested persons have given comments in
accordance with a notice under subsection (1), the Minister must have due
regard to those comments in making or varying the determination.
48
Service provider notifications
Scope
(1) This section applies to the following
services:
(a) a social media service, if there are basic
online safety expectations for the service;
(b) a relevant electronic service, if there are
basic online safety expectations for the service;
(c) a designated internet service, if there are
basic online safety expectations for the service.
Statement
(2) If the Commissioner is satisfied that the
provider of a service has contravened one or more basic online safety
expectations for the service, the Commissioner may:
(a) prepare a statement to that effect; and
(b) give a copy of the statement to the provider
of the service; and
(c) if the Commissioner considers that it is
appropriate to publish the statement—publish the statement on the
Commissioner’s website.
(3) If the Commissioner is satisfied that the
provider of a service has complied with the basic online safety expectations
for the service at all times during a particular period, the Commissioner may:
(a) prepare a statement to that effect; and
(b) give a copy of the statement to the provider
of the service; and
(c) if the Commissioner considers that it is
appropriate to publish the statement—publish the statement on the
Commissioner’s website.
Subdivision A—Periodic reporting about compliance with basic online safety
expectations
Scope
(1) This section applies to the following
services:
(a) a social media service, if there are basic
online safety expectations for the service;
(b) a relevant electronic service, if there are
basic online safety expectations for the service;
(c) a designated internet service, if there are
basic online safety expectations for the service.
Notice
(2) The Commissioner may, by written notice given
to the provider of the service, require the provider to:
(a) do whichever of the following is specified in
the notice:
(i) prepare periodic reports about the extent to
which the provider complied with the applicable basic online safety expectations
during such regular intervals as are specified in the notice;
(ii) prepare periodic reports about the extent to
which the provider complied with one or more specified applicable basic online
safety expectations during such regular intervals as are specified in the
notice; and
(b) prepare those periodic reports in the manner
and form specified in the notice; and
(c) give each of those periodic reports to the
Commissioner:
(i) within the period ascertained in accordance
with the notice in relation to the periodic report concerned; or
(ii) if the Commissioner allows a longer period in
relation to the periodic report concerned—within that longer period.
(3) An interval specified under subparagraph (2)(a)(i)
or (ii):
(a) must not be shorter than 6 months; and
(b) must not be longer than 24 months.
(4) A period ascertained in accordance with the
notice as mentioned in subparagraph (2)(c)(i) must not be shorter than 28
days after the end of the interval to which the periodic report relates.
(5) In deciding whether to give a notice under subsection (2)
to the provider of a service, the Commissioner must have regard to the
following:
(a) the number of occasions during the previous 12
months on which complaints about material provided on the service were made to
the Commissioner under this Act;
(b) whether the provider has previously
contravened a civil penalty provision of this Division;
(c) whether there are deficiencies in the
provider’s practices, so far as those practices relate to the capacity of end‑users
to use the service in a safe manner;
(d) whether there are deficiencies in the service’s
terms of use, so far as they relate to the capacity of end‑users to use the
service in a safe manner;
(e) whether the provider has agreed to give the Secretary
regular reports relating to the capacity of end‑users to use the service in a
safe manner;
(f) such other matters (if any) as the
Commissioner considers relevant.
A
person must comply with a notice under subsection 49(2) to the extent that
the person is capable of doing so.
Civil penalty: 500 penalty units.
The
Commissioner may issue a formal warning if a person contravenes section 50.
52
Periodic reporting determination
Scope
(1) This section applies to the following
services:
(a) a social media service, if there are basic
online safety expectations for the service;
(b) a relevant electronic service, if there are
basic online safety expectations for the service;
(c) a designated internet service, if there are
basic online safety expectations for the service.
Determination
(2) The Commissioner may, by legislative
instrument, determine that each provider of a service included in a specified
class of services is required to:
(a) do whichever of the following is specified in
the determination:
(i) prepare periodic reports about the extent to
which the provider complied with the applicable basic online safety
expectations during such regular intervals as are specified in the
determination;
(ii) prepare periodic reports about the extent to
which the provider complied with one or more specified applicable basic online
safety expectations during such regular intervals as are specified in the
determination; and
(b) prepare those periodic reports in the manner
and form specified in the determination; and
(c) give each of those periodic reports to the
Commissioner:
(i) within the period ascertained in accordance
with the determination in relation to the periodic report concerned; or
(ii) if the Commissioner allows a longer period in
relation to the periodic report concerned—within that longer period.
(3) An interval specified under subparagraph (2)(a)(i)
or (ii):
(a) must not be shorter than 6 months; and
(b) must not be longer than 24 months.
(4) A period ascertained in accordance with the
determination as mentioned in subparagraph (2)(c)(i) must not be shorter
than 28 days after the end of the interval to which the periodic report
relates.
53
Compliance with determination
A
person must comply with a determination under subsection 52(2) to the
extent that the person is capable of doing so.
Civil penalty: 500 penalty units.
The
Commissioner may issue a formal warning if a person contravenes section 53.
55
Service provider notifications
(1) If:
(a) the Commissioner gave a notice under subsection 49(2)
to the provider of:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the provider did not comply with the notice;
the Commissioner may:
(c) prepare a statement to that effect; and
(d) publish the statement on the Commissioner’s
website; and
(e) give a copy of the statement to the provider
of the service.
(2) If:
(a) a determination under subsection 52(2)
applies to the provider of:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the provider did not comply with the
determination;
the Commissioner may:
(c) prepare a statement to that effect; and
(d) publish the statement on the Commissioner’s
website; and
(e) give a copy of the statement to the provider
of the service.
Subdivision B—Non‑periodic reporting about compliance with basic online
safety expectations
56
Non‑periodic reporting notice
Scope
(1) This section applies to the following
services:
(a) a social media service, if there are basic
online safety expectations for the service;
(b) a relevant electronic service, if there are
basic online safety expectations for the service;
(c) a designated internet service, if there are
basic online safety expectations for the service.
Notice
(2) The Commissioner may, by written notice given
to the provider of the service, require the provider to:
(a) do whichever of the following is specified in
the notice:
(i) prepare a report about the extent to which the
provider complied with the applicable basic online safety expectations during
the period specified in the notice;
(ii) prepare a report about the extent to which the
provider complied with one or more specified applicable basic online safety
expectations during the period specified in the notice; and
(b) prepare the report in the manner and form
specified in the notice; and
(c) give the report to the Commissioner:
(i) within the period specified in the notice; or
(ii) if the Commissioner allows a longer
period—within that longer period.
(3) The period specified under subparagraph (2)(a)(i)
or (ii):
(a) must not be shorter than 6 months; and
(b) must not be longer than 24 months.
(4) The period specified in subparagraph (2)(c)(i)
must not be shorter than 28 days after the notice is given.
(5) In deciding whether to give a notice under subsection (2)
to the provider of a service, the Commissioner must have regard to the
following:
(a) the number of occasions during the previous 12
months on which complaints about material provided on the service were made to
the Commissioner under this Act;
(b) whether the provider has previously
contravened a civil penalty provision of this Division;
(c) whether there are deficiencies in the
provider’s practices, so far as those practices relate to the capacity of end‑users
to use the service in a safe manner;
(d) whether there are deficiencies in service’s
terms of use, so far as they relate to the capacity of end‑users to use the
service in a safe manner;
(e) whether the provider has agreed to give the
Secretary regular reports relating to the capacity of end‑users to use the
service in a safe manner;
(f) such other matters (if any) as the
Commissioner considers relevant.
A
person must comply with a notice under subsection 56(2) to the extent that
the person is capable of doing so.
Civil penalty: 500 penalty units.
The
Commissioner may issue a formal warning if a person contravenes section 57.
59
Non‑periodic reporting determination
Scope
(1) This section applies to the following
services:
(a) a social media service, if there are basic
online safety expectations for the service;
(b) a relevant electronic service, if there are
basic online safety expectations for the service;
(c) a designated internet service, if there are
basic online safety expectations for the service.
Determination
(2) The Commissioner may, by legislative
instrument, determine that each provider of a service included in a specified
class of services is required to:
(a) do whichever of the following is specified in
the determination:
(i) prepare a report about the extent to which the
provider complied with the applicable basic online safety expectations during
the period specified in the determination;
(ii) prepare a report about the extent to which the
provider complied with one or more specified applicable basic online safety
expectations during the period specified in the determination; and
(b) prepare the report in the manner and form
specified in the determination; and
(c) give the report to the Commissioner:
(i) within the period specified in the
determination; or
(ii) if the Commissioner allows a longer
period—within that longer period.
(3) The period specified under subparagraph (2)(a)(i)
or (ii):
(a) must not be shorter than 6 months; and
(b) must not be longer than 24 months.
(4) The period specified in subparagraph (2)(c)(i)
must not be shorter than 28 days after the determination is made.
60
Compliance with determination
A
person must comply with a determination under subsection 59(2) to the
extent that the person is capable of doing so.
Civil penalty: 500 penalty units.
The
Commissioner may issue a formal warning if a person contravenes section 60.
62 Service provider notifications
(1) If:
(a) the Commissioner gave a notice under subsection 56(2)
to the provider of:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the provider did not comply with the notice;
the Commissioner may:
(c) prepare a statement to that effect; and
(d) publish the statement on the Commissioner’s website;
and
(e) give a copy of the statement to the provider
of the service.
(2) If:
(a) a determination under subsection 59(2)
applies to the provider of:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the provider did not comply with the
determination;
the Commissioner may:
(c) prepare a statement to that effect; and
(d) publish the statement on the Commissioner’s
website; and
(e) give a copy of the statement to the provider
of the service.
Subdivision C—Self‑incrimination
(1) A person is not excused from giving a report
under this Division on the ground that the report might tend to incriminate the
person.
(2) However, in the case of an individual:
(a) the report; or
(b) giving the report; or
(c) any information, document or thing obtained as
a direct or indirect consequence of giving the report;
is not admissible in evidence against the
individual:
(d) in civil proceedings for the recovery of a
penalty (other than proceedings for the recovery of a penalty under this
Division); or
(e) in criminal proceedings (other than
proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this
Division).
(3) If, at general law, an individual would
otherwise be able to claim the privilege against self‑exposure to a penalty
(other than a penalty for an offence) in relation to giving a report under this
Division, the individual is not excused from giving the report under this Division
on that ground.
Note: A
body corporate is not entitled to claim the privilege against self‑exposure to
a penalty.
Part 4A—Social media minimum age
63A
Simplified outline of this Part
• Providers of certain kinds of social media
platforms must take reasonable steps to prevent children who have not reached a
minimum age from having accounts. This requirement takes effect on a day
specified by the Minister.
• There are privacy protections for
information collected by social media platforms for the purposes of the minimum
age requirement.
The
object of this Part is to reduce the risk of harm to age‑restricted users
from certain kinds of social media platforms.
63C Age‑restricted social media
platform
(1) For
the purposes of this Act, age‑restricted social media platform
means:
(a) an electronic service that satisfies the following conditions:
(i) the sole purpose, or a significant purpose, of
the service is to enable online social interaction between 2 or more end‑users;
(ii) the service allows end‑users to link to, or
interact with, some or all of the other end‑users;
(iii) the service allows end‑users to post material
on the service;
(iv) such other conditions (if any) as are set out
in the legislative rules; or
(b) an electronic service specified in the legislative rules;
but
does not include a service mentioned in subsection (6).
Note
1: Online social interaction does not
include (for example) online business interaction.
Note
2: An age‑restricted social media
platform may be, but is not necessarily, a social media service under
section 13.
Note
3: For specification by class, see
subsection 13(3) of the Legislation
Act 2003.
(2) For
the purposes of subparagraph (1)(a)(i), online social interaction includes
online interaction that enables end‑users to share material for social
purposes.
Note: Social purposes does not include (for
example) business purposes.
(3) In
determining whether the condition set out in subparagraph (1)(a)(i) is
satisfied, disregard any of the following purposes:
(a) the provision of advertising material on the service;
(b) the generation of revenue from the provision of advertising
material on the service.
(4) The Minister may only make legislative rules
specifying an electronic service for the purposes of paragraph (1)(b) if
the Minister is satisfied that it is reasonably necessary to do so in order to
minimise harm to age‑restricted users.
(5) Before making legislative rules specifying an
electronic service for the purposes of paragraph (1)(b):
(a) the Minister must seek advice from the
Commissioner, and must have regard to that advice; and
(b) the Minister may seek advice from any other
authorities or agencies of the Commonwealth that the Minister considers
relevant, and may have regard to any such advice.
Services that are not age‑restricted social media platforms
(6) An
electronic service is not an age‑restricted social media platform
if:
(a) none of the material on the service is accessible to, or delivered
to, one or more end‑users in Australia; or
(b) the service is specified in the legislative rules.
Note: For specification by class, see
subsection 13(3) of the Legislation
Act 2003.
(7) Before
making legislative rules specifying an electronic service for the purposes of
paragraph (6)(b):
(a) the Minister must seek advice from the Commissioner, and must have
regard to that advice; and
(b) the Minister may seek advice from any other authorities or agencies
of the Commonwealth that the Minister considers relevant, and may have regard
to any such advice.
A
provider of an age‑restricted social media platform must take reasonable steps
to prevent age‑restricted users having accounts with the age‑restricted social
media platform.
Civil penalty: 30,000 penalty units.
63DA
Information that must not be collected
(1) A provider of an age‑restricted social media
platform must not collect information:
(a) for the purpose of complying with section 63D;
or
(b) for purposes that include the purpose of
complying with section 63D;
if the information is of a kind specified
in the legislative rules.
Civil penalty: 30,000 penalty units.
(2) Before making legislative rules specifying a
kind of information for the purposes of subsection (1), the Minister:
(a) must seek advice from the Commissioner, and
must have regard to that advice; and
(b) must seek advice from the Information
Commissioner, and must have regard to that advice.
(3) Section 63D does not apply to the
provider of an age‑restricted social media platform if, because of legislative
rules made for the purposes of subsection (1) of this section, there are
no reasonable steps that the provider could take in order to comply with section 63D.
Note: In
proceedings for a civil penalty order against a person for a contravention of section 63D,
the person bears an evidential burden in relation to the matter in this subsection (see
section 96 of the Regulatory Powers
(Standard Provisions) Act 2014).
63DB
Use of certain identification material and services
(1) A
provider of an age‑restricted social media platform must not:
(a) collect government‑issued identification material; or
(b) use an accredited service (within the meaning of the Digital ID Act 2024);
for
the purpose of complying with section 63D, or for purposes that include
the purpose of complying with section 63D.
Civil penalty: 30,000 penalty units.
(2) Subsection (1) does not apply if:
(a) the provider provides alternative
means (not involving the material and services mentioned in paragraphs (1)(a)
and (b)) for an individual to assure the provider that the individual is not an
age‑restricted user; and
(b) those means are reasonable in the
circumstances.
Note: In
proceedings for a civil penalty order against a person for a contravention of subsection (1),
the person bears an evidential burden in relation to the matter in this subsection (see
section 96 of the Regulatory Powers
(Standard Provisions) Act 2014).
(3) This section does not limit section 63DA.
(4) In this section:
government‑issued identification material includes:
(a) identification documents issued by the
Commonwealth, a State or a Territory, or by an authority or agency of the
Commonwealth, a State or a Territory (including copies of such documents); and
(b) a digital ID (within the meaning of the Digital ID Act 2024) issued by the
Commonwealth, a State or a Territory, or by an authority or agency of the
Commonwealth, a State or a Territory.
(1) Section 63D takes effect on a day
specified in an instrument under subsection (2) of this section.
(2) The Minister may, by notifiable instrument,
specify a day for the purposes of subsection (1).
(3) The specified day must not be later than 12
months after the day this section commences.
(4) To avoid doubt, the obligation in section 63D
applies in relation to accounts with an age‑restricted social media platform if
the accounts exist on or after the day section 63D takes effect (including
accounts that began to exist before that day, and accounts that began to exist
before the day this section commences).
(1) If an entity:
(a) holds personal information about an individual
that was collected for the purpose of, or for purposes including the purpose
of, taking reasonable steps to prevent age‑restricted users having accounts
with an age‑restricted social media platform; and
(b) uses or discloses the information otherwise
than:
(i) for the purpose of determining whether or not
the individual is an age‑restricted user; or
(ii) in circumstances where paragraph 6.2(b),
(c), (d) or (e) of the Australian Privacy Principles applies; or
(iii) with the consent of the individual, which must
be in accordance with subsection (2);
the use or disclosure of the information
is taken to be:
(c) an interference with the privacy of the
individual for the purposes of the Privacy
Act 1988; and
(d) covered by section 13 of that Act.
Note: An
act or practice that is an interference with privacy may be the subject of a
complaint under section 36 of the Privacy
Act 1988.
(2) For the purposes of
subparagraph (1)(b)(iii):
(a) the consent must be:
(i) voluntary; and
(ii) informed; and
(iii) current; and
(iv) specific; and
(v) unambiguous; and
(b) the individual must be able to withdraw the
consent in a manner that is easily accessible to the individual.
(a) the entity must destroy the information after using or disclosing
it for the purposes for which it was collected; and
(b) if the entity does not so destroy the information, the failure to
destroy the information is taken to be:
(i) an interference with the privacy of the
individual for the purposes of the Privacy
Act 1988; and
(ii) covered by section 13 of that Act.
Note: An
act or practice that is an interference with privacy may be the subject of a
complaint under section 36 of the Privacy
Act 1988.
(4) In this section:
entity has the same meaning as in Division 1 of Part III of the Privacy Act 1988.
personal information
has the same meaning as in the Privacy
Act 1988.
Division 4—Information‑gathering powers
63G
Commissioner may obtain information about compliance
Scope
(1) This section applies to a person if the
Commissioner believes on reasonable grounds that:
(a) the person is a provider of an age‑restricted
social media platform; and
(b) the person has information relevant to the
person’s compliance with section 63D or subsection 63DA(1) or
63DB(1).
(2) This section also applies to a person if the
Commissioner believes on reasonable grounds that:
(a) the person is a provider of an electronic
service; and
(b) the person has information relevant to whether
the service is a service specified in the legislative rules for the purposes of
paragraph 63C(1)(b) or (6)(b).
Requirement
(3) The Commissioner may, by written notice given
to a person to whom this section applies, require the person to give to the
Commissioner, within the period and in the manner and form specified in the
notice, any information mentioned in paragraph (1)(b) or (2)(b) (as the
case may be).
A
person must comply with a requirement under section 63G to the extent that
the person is capable of doing so.
Civil penalty: 500 penalty units.
Division 5—Platform provider notifications
63J Platform provider
notifications—failure to take reasonable steps
If the Commissioner is
satisfied that the provider of an age‑restricted social media platform has
contravened:
(a) section 63D (failing to take reasonable steps to prevent age‑restricted
users having accounts); or
(b) subsection 63DA(1) (collecting information); or
(c) subsection 63DB(1) (identification material and services);
the
Commissioner may:
(d) prepare a statement to that effect; and
(e) give a copy of the statement to the provider of the platform; and
(f) if the Commissioner considers that it is appropriate to publish the
statement—publish the statement on the Commissioner’s website.
63K
Platform provider notifications—privacy
If
the Information Commissioner is satisfied that the provider of an age‑restricted
social media platform has used, disclosed or failed to destroy information in a
way that is taken to be an interference with privacy under subsection 63F(1)
or (3) (privacy), the Information Commissioner may:
(a) prepare a statement to that effect; and
(b) give a copy of the statement to the provider
of the platform; and
(c) if the Information Commissioner considers that
it is appropriate to publish the statement—publish the statement on the
Information Commissioner’s website.
Part 5—Cyber‑bullying material targeted at an Australian child
64
Simplified outline of this Part
• A social media service, relevant electronic service or designated
internet service may be given a notice (a removal notice) requiring the
removal from the service of cyber‑bullying material targeted at an Australian
child.
• A hosting service provider who hosts cyber‑bullying material
targeted at an Australian child may be given a notice (a removal notice) requiring
the provider to cease hosting the material.
• A person who posts cyber‑bullying material targeted at an Australian
child may be given a notice (an end‑user notice) requiring the
person to do any or all of the following:
(a) take
all reasonable steps to ensure the removal of the material;
(b) refrain
from posting any cyber‑bullying material for which the child is the target;
(c) apologise
for posting the material.
(1) If:
(a) material is, or has been, provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the material was the subject of a complaint
that was made to the provider of the service; and
(c) the material was not removed from the service
within:
(i) 48 hours after the complaint was made; or
(ii) such longer period as the Commissioner allows;
and
(d) a complaint has been made to the Commissioner
under section 30 about the material; and
(e) the Commissioner is satisfied that the
material is or was cyber‑bullying material targeted at an Australian child;
the Commissioner may give the provider of
the service a written notice (a removal notice) requiring the
provider to:
(f) remove the material from the service; and
(g) do so within:
(i) 24 hours after the removal notice was given to
the provider; or
(ii) such longer period as the Commissioner allows.
Note: For
enforcement, see:
(a) sections 67
and 162 (civil penalty); and
(b) section 163
(infringement notices); and
(c) section 164
(enforceable undertakings); and
(d) section 165
(injunctions).
(2) So far as is reasonably practicable, the
material must be identified in the removal notice in a way that is sufficient
to enable the provider of the service to comply with the notice.
Notice of refusal to give a removal
notice
(3) If the Commissioner decides to refuse to give
a removal notice under subsection (1), the Commissioner must give written notice
of the refusal to the person who made a section 30 complaint about the
material concerned.
66
Removal notice given to a hosting service provider
(1) If:
(a) material is, or has been, provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the material was the subject of a complaint
that was made to the provider of the service; and
(c) the material was not removed from the service
within:
(i) 48 hours after the complaint was made; or
(ii) such longer period as the Commissioner allows;
and
(d) a complaint has been made to the Commissioner
under section 30 about the material; and
(e) the Commissioner is satisfied that the
material is or was cyber‑bullying material targeted at an Australian child; and
(f) the material is hosted by a hosting service
provider;
the Commissioner may give the hosting
service provider a written notice, to be known as a removal notice, requiring
the provider to:
(g) take all reasonable steps to cease hosting the
material; and
(h) do so within:
(i) 24 hours after the notice was given to the
provider; or
(ii) such longer period as the Commissioner allows.
(2) So far as is reasonably practicable, the
material must be identified in the removal notice in a way that is sufficient
to enable the hosting service provider to comply with the notice.
Notice of refusal to give a removal
notice
(3) If the Commissioner decides to refuse to give
a removal notice under subsection (1), the Commissioner must give written
notice of the refusal to the person who made a section 30 complaint about
the material concerned.
67
Compliance with removal notice
A
person must comply with a requirement under a removal notice given under section 65
or 66 to the extent that the person is capable of doing so.
Civil penalty: 500 penalty units.
The
Commissioner may issue a formal warning if a person contravenes section 67.
(1) If:
(a) material is, or has been, provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) a complaint has been made to the Commissioner
under section 30 about the material; and
(c) the Commissioner is satisfied that the
material is or was cyber‑bullying material targeted at an Australian child; and
(d) the material was posted on the service by a
particular end‑user of the service;
the Commissioner may give the end‑user a
written notice (an end‑user notice) requiring the end‑user to do any or all of the
following:
(e) if the material is provided on the service—to:
(i) take all reasonable steps to ensure the
removal of the material from the service; and
(ii) do so within the period specified in the
notice;
(f) in any case—to refrain from posting any cyber‑bullying
material for which the child is the target;
(g) in any case—to:
(i) apologise to the child (or, if the child has
become an adult, to the adult) for posting the material; and
(ii) do so in the manner, and within the period,
specified in the notice.
(2) So far as is reasonably practicable, the
material must be identified in the end‑user notice in a way that is sufficient
to enable the end‑user to comply with the notice.
71
Compliance with end‑user notice
A
person must comply with a requirement under an end‑user notice to the extent
that the person is capable of doing so.
Note: For
enforcement, see section 165 (injunctions).
The
Commissioner may issue a formal warning if a person contravenes section 71.
73
Service provider notifications
(1) If:
(a) material is provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the Commissioner is satisfied that the
material is or was cyber‑bullying material targeted at an Australian child; and
(c) a complaint has been made to the Commissioner
under section 30 about the material;
the Commissioner may, with the consent of
the complainant, give the provider of the service a written notice that:
(d) identifies the material; and
(e) states the Commissioner is satisfied that the
material is cyber‑bullying material targeted at an Australian child.
(2) If the Commissioner is satisfied that there
were 2 or more occasions during the previous 12 months on which:
(a) cyber‑bullying material targeted at an
Australian child is, or has been, provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the provision of the material contravened the
service’s terms of use;
the Commissioner may:
(c) prepare a statement to that effect; and
(d) publish the statement on the Commissioner’s
website; and
(e) give a copy of the statement to the provider
of the service.
Part 6—Non‑consensual sharing of intimate images
74
Simplified outline of this Part
• A person who posts, or threatens to post,
an intimate image without the consent of the person depicted in the image may
be liable to a civil penalty.
• The provider of a social media service,
relevant electronic service or designated internet service may be given a
notice (a removal notice) requiring the provider to remove an intimate
image from the service.
• An end‑user of a social media service,
relevant electronic service or designated internet service who posts an
intimate image on the service may be given a notice (a removal notice) requiring
the end‑user to remove the image from the service.
• A hosting service provider who hosts an
intimate image may be given a notice (a removal notice) requiring the
provider to cease hosting the image.
Division 2—Intimate images must not be posted without consent etc.
(1) A person (the first person) who is an
end‑user of:
(a) a social media service; or
(b) a relevant electronic service; or
(c) a designated internet service;
must not post, or make a threat to post,
an intimate image of another person (the second person) on the service if:
(d) the first person is ordinarily resident in Australia;
or
(e) the second person is ordinarily resident in
Australia.
Civil penalty: 500 penalty units.
Consent
(2) Subsection (1) does not apply if the
second person consented to the posting of the intimate image by the first
person.
Note: In
proceedings for a civil penalty order against a person for a contravention of subsection (1),
the person bears an evidential burden in relation to the matter in this subsection (see
section 96 of the Regulatory Powers
(Standard Provisions) Act 2014).
Depiction of second person without
attire of religious or cultural significance
(3) Subsection (1) does not apply if:
(a) the intimate image is covered by subsection 15(4)
because it depicts, or appears to depict, the second person without particular
attire of religious or cultural significance; and
(b) the first person did not know that, because of
the second person’s religious or cultural background, the second person
consistently wears that attire whenever the second person is in public.
Note: In
proceedings for a civil penalty order against a person for a contravention of subsection (1),
the person bears an evidential burden in relation to the matter in this subsection (see
section 96 of the Regulatory Powers
(Standard Provisions) Act 2014).
Exempt provision of the intimate image
(4) Subsection (1) does not apply if:
(a) in the case of a post of the intimate image—the
resulting provision of the intimate image on the service is an exempt provision
of the intimate image; or
(b) in the case of a threat to post the intimate
image—assuming that the threat had been carried out, the resulting provision of
the intimate image on the service would be an exempt provision of the intimate
image.
Note: In
proceedings for a civil penalty order against a person for a contravention of subsection (1),
the person bears an evidential burden in relation to the matter in this subsection (see
section 96 of the Regulatory Powers
(Standard Provisions) Act 2014).
The
Commissioner may issue a formal warning if a person contravenes section 75.
(1) If:
(a) an intimate image of a person is, or has been,
provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the intimate image is the subject of:
(i) a complaint made to the Commissioner under section 32;
or
(ii) an objection notice given to the Commissioner
under section 33; and
(c) if subparagraph (b)(i) applies—the
Commissioner is satisfied that the person did not consent to the provision of
the intimate image on the service; and
(d) the provision of the intimate image on the
service is not an exempt provision of the intimate image;
the Commissioner may give the provider of
the service a written notice, to be known as a removal notice, requiring
the provider to:
(e) take all reasonable steps to ensure the
removal of the intimate image from the service; and
(f) do so within:
(i) 24 hours after the notice was given to the
provider; or
(ii) such longer period as the Commissioner allows.
(2) So far as is reasonably practicable, the
intimate image must be identified in the removal notice in a way that is
sufficient to enable the provider of the service to comply with the notice.
Notice of refusal to give a removal
notice
(3) If the Commissioner decides to refuse to give
a removal notice under subsection (1), the Commissioner must give written
notice of the refusal to:
(a) if subparagraph (1)(b)(i) applies—the
person who made the complaint mentioned in that subparagraph; or
(b) if subparagraph (1)(b)(ii) applies—the
person who gave the objection notice mentioned in that subparagraph.
78 Removal notice given to an end‑user
(1) If:
(a) an intimate image of a person is, or has been,
provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the intimate image was posted on the service
by a particular end‑user of the service; and
(c) the intimate image is the subject of:
(i) a complaint made to the Commissioner under section 32;
or
(ii) an objection notice given to the Commissioner
under section 33; and
(d) if subparagraph (c)(i) applies—the
Commissioner is satisfied that the person did not consent to the provision of
the intimate image on the service; and
(e) the provision of the intimate image on the
service is not an exempt provision of the intimate image;
the Commissioner may give the end‑user a
written notice, to be known as a removal notice, requiring the end‑user
to:
(f) take all reasonable steps to ensure the
removal of the intimate image from the service; and
(g) do so within:
(i) 24 hours after the notice was given to the end‑user;
or
(ii) such longer period as the Commissioner allows.
(2) So far as is reasonably practicable, the
intimate image must be identified in the removal notice in a way that is
sufficient to enable the end‑user to comply with the notice.
Notice of refusal to give a removal
notice
(3) If the Commissioner decides to refuse to give
a removal notice under subsection (1), the Commissioner must give written
notice of the refusal to:
(a) if subparagraph (1)(c)(i) applies—the
person who made the complaint mentioned in that subparagraph; or
(b) if subparagraph (1)(c)(ii) applies—the
person who gave the objection notice mentioned in that subparagraph.
79
Removal notice given to a hosting service provider
(1) If:
(a) an intimate image of a person is, or has been,
provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the intimate image is the subject of:
(i) a complaint made to the Commissioner under section 32;
or
(ii) an objection notice given to the Commissioner
under section 33; and
(c) if subparagraph (b)(i) applies—the
Commissioner is satisfied that the person did not consent to the provision of
the intimate image on the service; and
(d) the intimate image is hosted by a hosting
service provider; and
(e) the provision of the intimate image on the
service is not an exempt provision of the intimate image;
the Commissioner may give the hosting
service provider a written notice, to be known as a removal notice, requiring
the provider to:
(f) take all reasonable steps to cease hosting the
intimate image; and
(g) do so within:
(i) 24 hours after the notice was given to the
provider; or
(ii) such longer period as the Commissioner allows.
(2) So far as is reasonably practicable, the
intimate image must be identified in the removal notice in a way that is
sufficient to enable the hosting service provider to comply with the notice.
Notice of refusal to give a removal
notice
(3) If the Commissioner decides to refuse to give
a removal notice under subsection (1), the Commissioner must give written
notice of the refusal to:
(a) if subparagraph (1)(b)(i) applies—the
person who made the complaint mentioned in that subparagraph; or
(b) if subparagraph (1)(b)(ii) applies—the
person who gave the objection notice mentioned in that subparagraph.
80
Compliance with removal notice
A
person must comply with a requirement under a removal notice given under section 77,
78 or 79 to the extent that the person is capable of doing so.
Civil penalty: 500 penalty units.
The
Commissioner may issue a formal warning if a person contravenes section 80.
Scope
(1) This section applies if a person has
contravened, or is contravening, section 75.
Remedial direction
(2) The Commissioner may give the person a written
direction requiring the person to take specified action directed towards
ensuring that the person does not contravene section 75 in the future.
Note: For
variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
(3) A person must not contravene a direction under
subsection (2).
Civil penalty: 500 penalty units.
Remedial direction is not a
legislative instrument
(4) A direction under subsection (2) is not a
legislative instrument.
The
Commissioner may issue a formal warning if a person contravenes a direction
under subsection 83(2).
85
Service provider notifications
(1) If:
(a) an intimate image of a person is, or has been,
provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the intimate image is the subject of:
(i) a complaint made to the Commissioner under section 32;
or
(ii) an objection notice given to the Commissioner
under section 33; and
(c) if subparagraph (b)(i) applies—the
Commissioner is satisfied that the person did not consent to the provision of
the intimate image on the service; and
(d) the provision of the intimate image on the
service is not an exempt provision of the intimate image;
the Commissioner may, with the consent of
the complainant, give the provider of the service a written notice that:
(e) identifies the image; and
(f) states the Commissioner is satisfied that the
person did not consent to the provision of the image on the service.
(2) If the Commissioner is satisfied that there
were 2 or more occasions during the previous 12 months on which:
(a) an intimate image of a person is, or has been,
provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the provision of the intimate image
contravened the service’s terms of use; and
(c) the person did not consent to the provision of
the intimate image on the service; and
(d) the provision of the intimate image on the
service is not an exempt provision of the intimate image;
the Commissioner may:
(e) prepare a statement to that effect; and
(f) publish the statement on the Commissioner’s
website; and
(g) give a copy of the statement to the provider
of the service.
86
Exempt provision of an intimate image
(1) For the purposes of this Act, if an intimate
image of a person (the depicted person) is provided on:
(a) a social media service; or
(b) a relevant electronic service; or
(c) a designated internet service;
the provision of the intimate image on
the service is an exempt provision of the intimate image if:
(d) the provision of the intimate image on the
service is necessary for, or of assistance in:
(i) enforcing a law of the Commonwealth, a State
or a Territory; or
(ii) monitoring compliance with, or investigating a
contravention of, a law of the Commonwealth, a State or a Territory; or
(e) the provision of the intimate image on the
service is for the purposes of proceedings in a court or tribunal; or
(f) the provision of the intimate image on the
service is for a genuine medical or scientific purpose; or
(g) an ordinary reasonable person would consider
the provision of the intimate image on the service acceptable, having regard to
the following matters:
(i) the nature and content of the intimate image;
(ii) the circumstances in which the intimate image
was provided on the service;
(iii) the age, intellectual capacity, vulnerability
or other relevant circumstances of the depicted person;
(iv) the degree to which the provision of the
intimate image on the service affects the privacy of the depicted person;
(v) if the intimate image was posted on the
service by an end‑user of the service—the relationship between the end‑user and
the depicted person;
(vi) whether the depicted person has died, and if
so, how much time has elapsed since the depicted person’s death;
(vii) any other relevant matters; or
(h) the following conditions are satisfied:
(i) the intimate image was posted on the service
by an end‑user of the service;
(ii) the end‑user is a protected person (within the
meaning of section 223);
(iii) the post was in connection with the exercise
of a power, or the performance of a function, conferred on the Commissioner by
or under this Act; or
(i) a condition determined under subsection (2)
is satisfied.
(2) The Minister may, by legislative instrument,
determine one or more conditions for the purposes of paragraph (1)(i).
Part 7—Cyber‑abuse material targeted at an Australian adult
87
Simplified outline of this Part
• The provider of a social media service, a relevant electronic
service or a designated internet service may be given a notice (a removal
notice) requiring the removal from the service of cyber‑abuse material
targeted at an Australian adult.
• A
person who posts cyber‑abuse material targeted at an
Australian adult may be given a notice (a removal notice) requiring the person
to remove the material.
• A
hosting service provider who hosts cyber‑abuse material
targeted at an Australian adult may be given a notice (a removal notice) requiring
the provider to cease hosting the material.
(1) If:
(a) material is, or has been, provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the Commissioner is satisfied that the
material is or was cyber‑abuse material targeted at an Australian adult; and
(c) the material was the subject of a complaint
that was made to the provider of the service; and
(d) if such a complaint was made—the material was
not removed from the service within:
(i) 48 hours after the complaint was made; or
(ii) such longer period as the Commissioner allows;
and
(e) a complaint has been made to the Commissioner
under section 36 about the material;
the Commissioner may give the provider of
the service a written notice, to be known as a removal notice, requiring
the provider to:
(f) take all reasonable steps to ensure the
removal of the material from the service; and
(g) do so within:
(i) 24 hours after the notice was given to the
provider; or
(ii) such longer period as the Commissioner allows.
(2) So far as is reasonably practicable, the material
must be identified in the removal notice in a way that is sufficient to enable
the provider of the service to comply with the notice.
Notice of refusal to give a removal
notice
(3) If the Commissioner decides to refuse to give
a removal notice under subsection (1), the Commissioner must give written
notice of the refusal to the person who made the complaint to the Commissioner
under section 36.
89
Removal notice given to an end‑user
(1) If:
(a) material is, or has been, provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the Commissioner is satisfied that the
material is or was cyber‑abuse material targeted at an Australian adult; and
(c) the material was the subject of a complaint
that was made to the provider of the service; and
(d) if such a complaint was made—the material was
not removed from the service within:
(i) 48 hours after the complaint was made; or
(ii) such longer period as the Commissioner allows;
and
(e) a complaint has been made to the Commissioner
under section 36 about the material; and
(f) the material was posted on the service by a
particular end‑user of the service;
the Commissioner may give the end‑user a
written notice, to be known as a removal notice, requiring the end‑user
to:
(g) take all reasonable steps to ensure the
removal of the material from the service; and
(h) do so within:
(i) 24 hours after the notice was given to the end‑user;
or
(ii) such longer period as the Commissioner allows.
(2) So far as is reasonably practicable, the material
must be identified in the removal notice in a way that is sufficient to enable
the end‑user to comply with the notice.
Notice of refusal to give a removal
notice
(3) If the Commissioner decides to refuse to give
a removal notice under subsection (1), the Commissioner must give written
notice of the refusal to the person who made the complaint to the Commissioner
under section 36.
90
Removal notice given to a hosting service provider
(1) If:
(a) material is, or has been, provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the Commissioner is satisfied that the
material is or was cyber‑abuse material targeted at an Australian adult; and
(c) the material was the subject of a complaint
that was made to the provider of the service; and
(d) if such a complaint was made—the material was
not removed from the service within:
(i) 48 hours after the complaint was made; or
(ii) such longer period as the Commissioner allows;
and
(e) a complaint has been made to the Commissioner
under section 36 about the material; and
(f) the material is hosted by a hosting service
provider;
the Commissioner may give the hosting
service provider a written notice, to be known as a removal notice, requiring
the provider to:
(g) take all reasonable steps to cease hosting the
material; and
(h) do so within:
(i) 24 hours after the notice was given to the
provider; or
(ii) such longer period as the Commissioner allows.
(2) So far as is reasonably practicable, the
material must be identified in the removal notice in a way that is sufficient
to enable the hosting service provider to comply with the notice.
Notice of refusal to give a removal
notice
(3) If the Commissioner decides to refuse to give
a removal notice under subsection (1), the Commissioner must give written
notice of the refusal to the person who made the complaint to the Commissioner
under section 36.
91
Compliance with removal notice
A person must comply with a requirement under
a removal notice given under section 88, 89 or 90 to the extent that the
person is capable of doing so.
Civil penalty: 500 penalty units.
The
Commissioner may issue a formal warning if a person contravenes section 91.
93
Service provider notifications
(1) If:
(a) material is, or has been, provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the Commissioner is satisfied that the
material is or was cyber‑abuse material targeted at an Australian adult; and
(c) a complaint has been made to the Commissioner
under section 36 about the material;
the Commissioner may, with the consent of
the complainant, give the provider of the service a written notice that:
(d) identifies the material; and
(e) states the Commissioner is satisfied that the
material is cyber‑abuse material targeted at an Australian adult.
(2) If the Commissioner is satisfied that there
were 2 or more occasions during the previous 12 months on which:
(a) cyber‑abuse material targeted at an Australian
adult is, or has been, provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the provision of the material contravened the
service’s terms of use;
the Commissioner may:
(c) prepare a statement to that effect; and
(d) publish the statement on the Commissioner’s
website; and
(e) give a copy of the statement to the provider
of the service.
Part 8—Material that depicts abhorrent violent conduct
94
Simplified outline of this Part
• An internet service provider may be
requested or required to block access to:
(a) material
that promotes abhorrent violent conduct; or
(b) material
that incites abhorrent violent conduct; or
(c) material
that instructs in abhorrent violent conduct; or
(d) material
that depicts abhorrent violent conduct.
(1) If:
(a) material can be accessed using an internet
carriage service supplied by an internet service provider; and
(b) the Commissioner is satisfied that the
material:
(i) promotes abhorrent violent conduct; or
(ii) incites abhorrent violent conduct; or
(iii) instructs in abhorrent violent conduct; or
(iv) is material that depicts abhorrent violent
conduct; and
(c) the Commissioner is satisfied that the
availability of the material online is likely to cause significant harm to the
Australian community;
the Commissioner may give the provider a
written request, to be known as a blocking request, requesting the
provider to take one or more specified steps to disable access to the material.
Note: See
also section 104 (exempt material).
(2) The following are examples of steps that may
be specified in the blocking request:
(a) steps to block domain names that provide
access to the material;
(b) steps to block URLs that provide access to the
material;
(c) steps to block IP addresses that provide
access to the material.
(3) The Commissioner is not required to observe
any requirements of procedural fairness in relation to the giving of the
blocking request.
(4) In determining whether the availability of the
material online is likely to cause significant harm to the Australian
community, the Commissioner must have regard to the following matters:
(a) the nature of the material;
(b) the number of end‑users who are likely to
access the material;
(c) such other matters (if any) as the
Commissioner considers relevant.
(5) In deciding whether to give the blocking
request, the Commissioner must have regard to the following matters:
(a) whether any other power conferred on the
Commissioner could be used to minimise the likelihood that the availability of
the material online could cause significant harm to the Australian community;
(b) such other matters (if any) as the
Commissioner considers relevant.
96
Duration of blocking request
(1) A blocking request remains in force for the
period specified in the blocking request.
(2) The specified period must not be longer than 3
months.
Fresh blocking request
(3) If a blocking request (the original
blocking request) is in force, this Act does not prevent the Commissioner
from giving a fresh blocking request that:
(a) is in the same, or substantially the same,
terms as the original blocking request; and
(b) comes into force immediately after the expiry
of the original blocking request.
97
Revocation of blocking request
Scope
(1) This section applies if a blocking request is
in force in relation to an internet service provider.
Revocation
(2) The Commissioner may, by written notice given
to the provider, revoke the blocking request.
98
Notification in relation to domain names and URLs
If:
(a) a blocking request is in force; and
(b) the blocking request requests an internet
service provider to:
(i) take steps to block a domain name; or
(ii) take steps to block a URL that relates to a
domain name; and
(c) the person to whom the domain name is
registered is known to the Commissioner;
the Commissioner must:
(d) give a copy of the blocking request to the
person; and
(e) do so as soon as practicable after the
blocking request is given to the internet service provider.
(1) If:
(a) material can be accessed using an internet
carriage service supplied by an internet service provider; and
(b) the Commissioner is satisfied that the
material:
(i) promotes abhorrent violent conduct; or
(ii) incites abhorrent violent conduct; or
(iii) instructs in abhorrent violent conduct; or
(iv) is material that depicts abhorrent violent
conduct; and
(c) the Commissioner is satisfied that the
availability of the material online is likely to cause significant harm to the
Australian community;
the Commissioner may give the provider a
written notice, to be known as a blocking notice, requiring the
provider to take one or more specified steps to disable access to the material.
Note: See
also section 104 (exempt material).
(2) The following are examples of steps that may
be specified in the blocking notice:
(a) steps to block domain names that provide
access to the material;
(b) steps to block URLs that provide access to the
material;
(c) steps to block IP addresses that provide
access to the material.
(3) The Commissioner is not required to observe
any requirements of procedural fairness in relation to the giving of the
blocking notice.
(4) In determining whether the availability of the
material online is likely to cause significant harm to the Australian
community, the Commissioner must have regard to the following matters:
(a) the nature of the material;
(b) the number of end‑users who are likely to access
the material;
(c) such other matters (if any) as the
Commissioner considers relevant.
(5) In deciding whether to give the blocking
notice, the Commissioner must have regard to the following matters:
(a) whether any other power conferred on the Commissioner
could be used to minimise the likelihood that the availability of the material
online could cause significant harm to the Australian community;
(b) such other matters (if any) as the
Commissioner considers relevant.
100
Duration of blocking notice
(1) A blocking notice remains in force for the
period specified in the blocking notice.
(2) The specified period must not be longer than 3
months.
Fresh blocking notice
(3) If a blocking notice (the original blocking notice)
is in force, this Act does not prevent the Commissioner from giving a fresh
blocking notice that:
(a) is in the same, or substantially the same,
terms as the original blocking notice; and
(b) comes into force immediately after the expiry
of the original blocking notice.
101
Revocation of blocking notice
Scope
(1) This section applies if a blocking notice is
in force in relation to an internet service provider.
Revocation
(2) The Commissioner may, by written notice given
to the provider, revoke the blocking notice.
102
Notification in relation to domain names and URLs
If:
(a) a blocking notice is in force; and
(b) the blocking notice requires an internet
service provider to:
(i) take steps to block a domain name; or
(ii) take steps to block a URL that relates to a
domain name; and
(c) the person to whom the domain name is
registered is known to the Commissioner;
the Commissioner must:
(d) give a copy of the blocking notice to the
person; and
(e) do so as soon as practicable after the blocking
notice is given to the internet service provider.
103
Compliance with blocking notice
A
person must comply with a requirement under a blocking notice.
Civil penalty: 500 penalty units.
(1) Subparagraphs 46(1)(c)(v), (vi), (vii)
and (viii) and 46(1)(e)(vi), (vii), (viii) and (ix) and subsections 95(1)
and 99(1) do not apply to material that can be accessed using a carriage
service if:
(a) the accessibility of the material is necessary
for enforcing a law of:
(i) the Commonwealth; or
(ii) a State; or
(iii) a Territory; or
(iv) a foreign country; or
(v) a part of a foreign country; or
(b) the accessibility of the material is necessary
for monitoring compliance with, or investigating a contravention of, a law of:
(i) the Commonwealth; or
(ii) a State; or
(iii) a Territory; or
(iv) a foreign country; or
(v) a part of a foreign country; or
(c) the accessibility of the material is for the
purposes of proceedings in a court or tribunal; or
(d) both:
(i) the accessibility of the material is necessary
for, or of assistance in, conducting scientific, medical, academic or
historical research; and
(ii) the accessibility of the material is
reasonable in the circumstances for the purpose of conducting that scientific,
medical, academic or historical research; or
(e) the material relates to a news report, or a
current affairs report, that:
(i) is in the public interest; and
(ii) is made by a person working in a professional
capacity as a journalist; or
(f) both:
(i) the accessibility of the material is in
connection with the performance by a public official of the official’s duties
or functions; and
(ii) the accessibility of the material is
reasonable in the circumstances for the purpose of performing that duty or
function; or
(g) both:
(i) the accessibility of the material is in
connection with an individual assisting a public official in relation to the
performance of the public official’s duties or functions; and
(ii) the accessibility of the material is
reasonable in the circumstances for the purpose of the individual assisting the
public official in relation to the performance of the public official’s duties
or functions; or
(h) the accessibility of the material is for the
purpose of advocating the lawful procurement of a change to any matter
established by law, policy or practice in:
(i) the Commonwealth; or
(ii) a State; or
(iii) a Territory; or
(iv) a foreign country; or
(v) a part of a foreign country;
and
the accessibility of the material is reasonable in the circumstances for that
purpose; or
(i) the accessibility of the material relates to
the development, performance, exhibition or distribution, in good faith, of an
artistic work.
(2) For the purposes of this section, public
official has the same meaning as in the Criminal Code.
105
Simplified outline of this Part
• The provider of a social media service,
relevant electronic service or designated internet service may be given a
notice (a removal notice) requiring the provider to remove certain
material.
• A hosting service provider may be given a
notice (a removal notice) requiring the provider to cease hosting certain
material.
• The provider of an internet search engine
service may be given a notice (a link deletion notice) requiring the
provider to cease providing a link to certain material.
• The provider of an app distribution
service may be given a notice (an app removal notice) requiring the
provider to cease enabling end‑users to download an app that facilitates the
posting of certain material on a social media service, relevant electronic
service or designated internet service.
• Bodies and associations that represent
sections of the online industry may develop industry codes.
• The Commissioner may make an industry
standard.
• The Commissioner may make service provider
determinations regulating service providers in the online industry.
(1) For the purposes of this Act, class
1 material means:
(a) material where the following conditions are
satisfied:
(i) the material is a film or the contents of a
film;
(ii) the film has been classified as RC by the
Classification Board under the Classification
(Publications, Films and Computer Games) Act 1995; or
(b) material where the following conditions are
satisfied:
(i) the material is a film or the contents of a
film;
(ii) the film has not been classified by the
Classification Board under the Classification
(Publications, Films and Computer Games) Act 1995;
(iii) if the film were to be classified by the Classification
Board under that Act—the film would be likely to be classified as RC; or
(c) material where the following conditions are
satisfied:
(i) the material is a publication or the contents
of a publication;
(ii) the publication has been classified as RC by
the Classification Board under the Classification
(Publications, Films and Computer Games) Act 1995; or
(d) material where the following conditions are
satisfied:
(i) the material is a publication or the contents
of a publication;
(ii) the publication has not been classified by the
Classification Board under the Classification
(Publications, Films and Computer Games) Act 1995;
(iii) if the publication were to be classified by
the Classification Board under that Act—the publication would be likely to be
classified as RC; or
(e) material where the following conditions are
satisfied:
(i) the material is a computer game;
(ii) the computer game has been classified as RC by
the Classification Board under the Classification
(Publications, Films and Computer Games) Act 1995; or
(f) material where the following conditions are
satisfied:
(i) the material is a computer game;
(ii) the computer game has not been classified by
the Classification Board under the Classification
(Publications, Films and Computer Games) Act 1995;
(iii) if the computer game were to be classified by
the Classification Board under that Act—the computer game would be likely to be
classified as RC; or
(g) material where the following conditions are
satisfied:
(i) the material is not a film, the contents of a
film, a computer game, a publication or the contents of a publication;
(ii) if the material were to be classified by the
Classification Board in a corresponding way to the way in which a film would be
classified under the Classification
(Publications, Films and Computer Games) Act 1995—the material would be
likely to be classified as RC.
Note: See
also section 160 (Commissioner may obtain advice from the Classification
Board).
(2) Section 22CF of the Classification (Publications, Films and Computer Games) Act 1995
(which deals with classification using an approved classification tool) applies
for the purposes of this section in a corresponding way to the way in which it
applies for the purposes of that Act.
(1) For the purposes of this Act, class
2 material means:
(a) material where the following conditions are
satisfied:
(i) the material is a film or the contents of a
film;
(ii) the film has been classified as X 18+ by the
Classification Board under the Classification
(Publications, Films and Computer Games) Act 1995; or
(b) material where the following conditions are
satisfied:
(i) the material is a film or the contents of a
film;
(ii) the film has not been classified by the
Classification Board under the Classification
(Publications, Films and Computer Games) Act 1995;
(iii) if the film were to be classified by the
Classification Board under that Act—the film would be likely to be classified
as X 18+; or
(c) material where the following conditions are
satisfied:
(i) the material is a publication or the contents
of a publication;
(ii) the publication has been classified as
Category 2 restricted by the Classification Board under the Classification (Publications, Films and
Computer Games) Act 1995; or
(d) material where the following conditions are
satisfied:
(i) the material is a publication or the contents
of a publication;
(ii) the publication has not been classified by the
Classification Board under the Classification
(Publications, Films and Computer Games) Act 1995;
(iii) if the publication were to be classified by
the Classification Board under that Act—the publication would be likely to be
classified as Category 2 restricted; or
(e) material where the following conditions are
satisfied:
(i) the material is not a film, the contents of a
film, a computer game, a publication or the contents of a publication;
(ii) if the material were to be classified by the
Classification Board in a corresponding way to the way in which a film would be
classified under the Classification
(Publications, Films and Computer Games) Act 1995—the material would be
likely to be classified as X 18+; or
(f) material where the following conditions are
satisfied:
(i) the material is a film or the contents of a
film;
(ii) the film has been classified as R 18+ by the
Classification Board under the Classification
(Publications, Films and Computer Games) Act 1995; or
(g) material where the following conditions are
satisfied:
(i) the material is a film or the contents of a
film;
(ii) the film has not been classified by the
Classification Board under the Classification
(Publications, Films and Computer Games) Act 1995;
(iii) if the film were to be classified by the
Classification Board under that Act—the film would be likely to be classified
as R 18+; or
(h) material where the following conditions are
satisfied:
(i) the material is a publication or the contents
of a publication;
(ii) the publication has been classified as
Category 1 restricted by the Classification Board under the Classification (Publications, Films and
Computer Games) Act 1995; or
(i) material where the following conditions are
satisfied:
(i) the material is a publication or the contents
of a publication;
(ii) the publication has not been classified by the
Classification Board under the Classification
(Publications, Films and Computer Games) Act 1995;
(iii) if the publication were to be classified by
the Classification Board under that Act—the publication would be likely to be
classified as Category 1 restricted; or
(j) material where the following conditions are
satisfied:
(i) the material is a computer game;
(ii) the computer game has been classified as R 18+
by the Classification Board under the Classification
(Publications, Films and Computer Games) Act 1995; or
(k) material where the following conditions are
satisfied:
(i) the material is a computer game;
(ii) the computer game has not been classified by
the Classification Board under the Classification
(Publications, Films and Computer Games) Act 1995;
(iii) if the computer game were to be classified by
the Classification Board under that Act—the computer game would be likely to be
classified as R 18+; or
(l) material where the following conditions are
satisfied:
(i) the material is not a film, the contents of a
film, a computer game, a publication or the contents of a publication;
(ii) if the material were to be classified by the
Classification Board in a corresponding way to the way in which a film would be
classified under the Classification
(Publications, Films and Computer Games) Act 1995—the material would be
likely to be classified as R 18+.
Note: See
also section 160 (Commissioner may obtain advice from the Classification
Board).
(2) Section 22CF of the Classification (Publications, Films and Computer Games) Act 1995
(which deals with classification using an approved classification tool) applies
for the purposes of this section in a corresponding way to the way in which it
applies for the purposes of that Act.
(1) The Commissioner may, by legislative
instrument, declare that a specified access‑control system is a restricted
access system in relation to material for the purposes of this Act.
Note: For
specification by class, see subsection 13(3) of the Legislation Act 2003.
(2) An instrument under subsection (1) may
make different provision with respect to different kinds of material.
(3) Subsection (2) does not limit subsection 33(3A)
of the Acts Interpretation Act 1901.
(4) In making an instrument under subsection (1),
the Commissioner must have regard to:
(a) the objective of protecting children from
exposure to material that is unsuitable for children; and
(b) the extent to which the instrument would be
likely to result in a financial or administrative burden on providers of the
following services:
(i) social media services;
(ii) relevant electronic services;
(iii) designated internet services; and
(c) such other matters (if any) as the
Commissioner considers relevant.
(5) The Commissioner must ensure that an
instrument under subsection (1) is in force at all times after the
commencement of this section.
Division 2—Removal notices relating to class 1 material
(1) If:
(a) material is, or has been, provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the Commissioner is satisfied that the
material is or was class 1 material; and
(c) the material can be accessed by end‑users in
Australia; and
(d) the service is not:
(i) an exempt Parliamentary content service; or
(ii) an exempt court/tribunal content service; or
(iii) an exempt official‑inquiry content service;
the Commissioner may give the provider of
the service a written notice, to be known as a removal notice, requiring
the provider to:
(e) take all reasonable steps to ensure the
removal of the material from the service; and
(f) do so within:
(i) 24 hours after the notice was given to the
provider; or
(ii) such longer period as the Commissioner allows.
(2) So far as is reasonably practicable, the
material must be identified in the removal notice in a way that is sufficient
to enable the provider of the service to comply with the notice.
110
Removal notice given to a hosting service provider
(1) If:
(a) material is, or has been, provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the Commissioner is satisfied that the
material is or was class 1 material; and
(c) the material can be accessed by end‑users in
Australia; and
(d) the service is not:
(i) an exempt Parliamentary content service; or
(ii) an exempt court/tribunal content service; or
(iii) an exempt official‑inquiry content service;
and
(e) the material is hosted by a hosting service
provider;
the Commissioner may give the hosting
service provider a written notice, to be known as a removal notice, requiring
the provider to:
(f) take all reasonable steps to cease hosting the
material; and
(g) do so within:
(i) 24 hours after the notice was given to the
provider; or
(ii) such longer period as the Commissioner allows.
(2) So far as is reasonably practicable, the material
must be identified in the removal notice in a way that is sufficient to enable
the hosting service provider to comply with the notice.
111
Compliance with removal notice
A
person must comply with a requirement under a removal notice given under section 109
or 110 to the extent that the person is capable of doing so.
Civil penalty: 500 penalty units.
The
Commissioner may issue a formal warning if a person contravenes section 111.
113 Revocation of removal notice
If
a removal notice is in force under section 109 or 110 in relation to:
(a) the provider of a social media service; or
(b) the provider of a relevant electronic service;
or
(c) the provider of a designated internet service;
or
(d) a hosting service provider;
the Commissioner may, by written notice
given to the provider, revoke the removal notice.
113A
Service provider notifications
If
the Commissioner is satisfied that there were 2 or more occasions during the
previous 12 months on which:
(a) class 1 material is, or has been, provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the material can be, or was able to be,
accessed by end‑users in Australia; and
(c) the service is not:
(i) an exempt Parliamentary content service; or
(ii) an exempt court/tribunal content service; or
(iii) an exempt official‑inquiry content service;
and
(d) the provision of the material contravened the
service’s terms of use;
the Commissioner may:
(e) prepare a statement to that effect; and
(f) publish the statement on the Commissioner’s
website; and
(g) give a copy of the statement to the provider
of the service.
Division 3—Removal notices relating to class 2 material
(1) If:
(a) material is, or has been, provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the Commissioner is satisfied that the
material is class 2 material covered by paragraph 107(1)(a), (b), (c), (d)
or (e); and
(c) the material can be accessed by end‑users in
Australia; and
(d) the service is not:
(i) an exempt Parliamentary content service; or
(ii) an exempt court/tribunal content service; or
(iii) an exempt official‑inquiry content service;
and
(e) the service is provided from Australia;
the Commissioner may give the provider of
the service a written notice, to be known as a removal notice, requiring
the provider to:
(f) take all reasonable steps to ensure the
removal of the material from the service; and
(g) do so within:
(i) 24 hours after the notice was given to the
provider; or
(ii) such longer period as the Commissioner allows.
(2) So far as is reasonably practicable, the
material must be identified in the removal notice in a way that is sufficient
to enable the provider of the service to comply with the notice.
115
Removal notice given to a hosting service provider
(1) If:
(a) material is, or has been, provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the Commissioner is satisfied that the
material is class 2 material covered by paragraph 107(1)(a), (b), (c), (d)
or (e); and
(c) the material can be accessed by end‑users in
Australia; and
(d) the service is not:
(i) an exempt Parliamentary content service; or
(ii) an exempt court/tribunal content service; or
(iii) an exempt official‑inquiry content service;
and
(e) the material is hosted by a hosting service
provider; and
(f) the material is hosted in Australia;
the Commissioner may give the hosting
service provider a written notice, to be known as a removal notice, requiring
the provider to:
(g) take all reasonable steps to cease hosting the
material; and
(h) do so within:
(i) 24 hours after the notice was given to the
provider; or
(ii) such longer period as the Commissioner allows.
(2) So far as is reasonably practicable, the
material must be identified in the removal notice in a way that is sufficient
to enable the hosting service provider to comply with the notice.
116
Compliance with removal notice
A
person must comply with a requirement under a removal notice given under section 114
or 115 to the extent that the person is capable of doing so.
Civil penalty: 500 penalty units.
The
Commissioner may issue a formal warning if a person contravenes section 116.
118 Revocation of removal notice
If
a removal notice is in force under section 114 or 115 in relation to:
(a) the provider of a social media service; or
(b) the provider of a relevant electronic service;
or
(c) the provider of a designated internet service;
or
(d) a hosting service provider;
the Commissioner may, by written notice
given to the provider, revoke the removal notice.
118A
Service provider notifications
If
the Commissioner is satisfied that there were 2 or more occasions during the
previous 12 months on which:
(a) class 2 material covered by paragraph 107(1)(a),
(b), (c), (d) or (e) is, or has been, provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the material can be, or was able to be,
accessed by end‑users in Australia; and
(c) the service is not:
(i) an exempt Parliamentary content service; or
(ii) an exempt court/tribunal content service; or
(iii) an exempt official‑inquiry content service;
and
(d) the service is provided from Australia; and
(e) the provision of the material contravened the
service’s terms of use;
the Commissioner may:
(f) prepare a statement to that effect; and
(g) publish the statement on the Commissioner’s
website; and
(h) give a copy of the statement to the provider
of the service.
Division 4—Remedial notices relating to class 2 material
(1) If:
(a) material is, or has been, provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the Commissioner is satisfied that the
material is class 2 material covered by paragraph 107(1)(f), (g), (h),
(i), (j), (k) or (l); and
(c) the material can be accessed by end‑users in
Australia; and
(d) the service is not:
(i) an exempt Parliamentary content service; or
(ii) an exempt court/tribunal content service; or
(iii) an exempt official‑inquiry content service;
and
(e) the service is provided from Australia;
the Commissioner may give the provider of
the service a written notice, to be known as a remedial notice,
requiring the provider to:
(f) take all reasonable steps to ensure either of
the following situations exist in relation to the material:
(i) the material is removed from the service;
(ii) access to the material is subject to a
restricted access system; and
(g) do so within:
(i) 24 hours after the notice was given to the
provider; or
(ii) such longer period as the Commissioner allows.
(2) So far as is reasonably practicable, the
material must be identified in the remedial notice in a way that is sufficient
to enable the provider of the service to comply with the notice.
120
Remedial notice given to a hosting service provider
(1) If:
(a) material is, or has been, provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the Commissioner is satisfied that the
material is class 2 material covered by paragraph 107(1)(f), (g), (h),
(i), (j), (k) or (l); and
(c) the material can be accessed by end‑users in
Australia; and
(d) the service is not:
(i) an exempt Parliamentary content service; or
(ii) an exempt court/tribunal content service; or
(iii) an exempt official‑inquiry content service;
and
(e) the material is hosted by a hosting service
provider; and
(f) the material is hosted in Australia;
the Commissioner may give the hosting
service provider a written notice, to be known as a remedial notice,
requiring the provider to:
(g) take all reasonable steps to ensure either of
the following situations exist in relation to the material:
(i) the service ceases to host the material;
(ii) access to the material is subject to a
restricted access system; and
(h) do so within:
(i) 24 hours after the notice was given to the
provider; or
(ii) such longer period as the Commissioner allows.
(2) So far as is reasonably practicable, the material
must be identified in the remedial notice in a way that is sufficient to enable
the hosting service provider to comply with the notice.
121
Compliance with remedial notice
A
person must comply with a requirement under a remedial notice given under section 119
or 120 to the extent that the person is capable of doing so.
Civil penalty: 500 penalty units.
The
Commissioner may issue a formal warning if a person contravenes section 121.
123 Revocation of remedial notice
If
a remedial notice is in force under section 119 or 120 in relation to:
(a) the provider of a social media service; or
(b) the provider of a relevant electronic service;
or
(c) the provider of a designated internet service;
or
(d) a hosting service provider;
the Commissioner may, by written notice
given to the provider, revoke the removal notice.
123A
Service provider notifications
If
the Commissioner is satisfied that there were 2 or more occasions during the
previous 12 months on which:
(a) class 2 material covered by paragraph 107(1)(f),
(g), (h), (i), (j), (k) or (l) is, or has been, provided on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the material can be, or was able to be,
accessed by end‑users in Australia; and
(c) access to the material is not, or was not,
subject to a restricted access system; and
(d) the service is not:
(i) an exempt Parliamentary content service; or
(ii) an exempt court/tribunal content service; or
(iii) an exempt official‑inquiry content service;
and
(e) the service is provided from Australia; and
(f) the provision of the material contravened the
service’s terms of use;
the Commissioner may:
(g) prepare a statement to that effect; and
(h) publish the statement on the Commissioner’s
website; and
(i) give a copy of the statement to the provider
of the service.
Division 5—Link deletion notices
(1) If:
(a) a person provides an internet search engine
service; and
(b) end‑users in Australia can access class 1
material using a link provided by the service;
the Commissioner may give the provider of
the service a written notice, to be known as a link deletion notice,
requiring the provider to:
(c) cease providing a link to the material using
the service; and
(d) do so within:
(i) 24 hours after the notice was given to the
provider; or
(ii) such longer period as the Commissioner allows.
(2) So far as is reasonably practicable, the
material must be identified in the link deletion notice in a way that is
sufficient to enable the internet search engine service provider to cease
providing a link to the material.
(3) The link deletion notice may also require the
internet search engine service provider to:
(a) notify the Commissioner that the provider has
ceased to provide a link to the material; and
(b) do so as soon as practicable after the
cessation.
(4) The Commissioner must not give the link
deletion notice unless:
(a) the Commissioner is satisfied that there were
2 or more times during the previous 12 months when end‑users in Australia could
access class 1 material using a link provided by the service; and
(b) during the previous 12 months:
(i) the Commissioner gave one or more removal
notices under section 109 or 110 in relation to class 1 material that
could be accessed using a link provided by the service; and
(ii) those removal notices were not complied with.
125
Compliance with link deletion notice
A
person must comply with a requirement under a link deletion notice to the
extent that the person is capable of doing so.
Civil penalty: 500 penalty units.
The
Commissioner may issue a formal warning if a person contravenes section 125.
127 Revocation of link deletion notice
If
a link deletion notice is in force relation to the provider of an internet
search engine service, the Commissioner may, by written notice given to the
provider, revoke the link deletion notice.
Division 6—App removal notices
(1) If:
(a) a person provides an app distribution service;
and
(b) the service enables end‑users in Australia to
download an app that facilitates the posting of class 1 material on:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service;
the Commissioner may give the provider of
the app distribution service a written notice, to be known as an app
removal notice, requiring the provider to:
(c) cease enabling end‑users in Australia to
download the app using the service; and
(d) do so within:
(i) 24 hours after the notice was given to the
provider; or
(ii) such longer period as the Commissioner allows.
(2) So far as is reasonably practicable, the
material must be identified in the app removal notice in a way that is
sufficient to enable the app distribution service provider to comply with the
notice.
(3) The app removal notice may also require the
app distribution service provider to:
(a) notify the Commissioner that the provider has
ceased to enable end‑users in Australia to download the app; and
(b) do so as soon as practicable after the
cessation.
(4) The Commissioner must not give the app removal
notice unless:
(a) the Commissioner is satisfied that there were
2 or more times during the previous 12 months when end‑users in Australia could
use the service to download an app that facilitates the posting of class 1
material; and
(b) during the previous 12 months:
(i) the Commissioner gave one or more removal
notices under section 109 or 110 in relation to class 1 material, the
posting of which is facilitated by the app; and
(ii) those removal notices were not complied with.
129
Compliance with app removal notice
A
person must comply with a requirement under an app removal notice to the extent
that the person is capable of doing so.
Civil penalty: 500 penalty units.
The
Commissioner may issue a formal warning if a person contravenes section 129.
131 Revocation of app removal notice
If
an app removal notice is in force in relation to the provider of an app
distribution service, the Commissioner may, by written notice given to the
provider, revoke the app removal notice.
Division 7—Industry codes and industry standards
For
the purposes of this Division, an industry code is a code developed
under this Division (whether or not in response to a request under this
Division).
For
the purposes of this Division, an industry standard is a standard
determined under this Division.
For
the purposes of this Division, an online activity is an activity that
consists of:
(a) providing a social media service, so far as
the service is provided to end‑users in Australia; or
(b) providing a relevant electronic service, so
far as the service is provided to end‑users in Australia; or
(c) providing a designated internet service, so
far as the service is provided to end‑users in Australia; or
(d) providing an internet search engine service,
so far as the service is provided to end‑users in Australia; or
(e) providing an app distribution service, so far
as the service is provided to end‑users in Australia; or
(f) providing a hosting service, so far as the
service hosts material in Australia; or
(g) providing an internet carriage service, so far
as the service is provided to customers in Australia; or
(h) manufacturing, supplying, maintaining or
installing any of the following equipment:
(i) equipment that is for use by end‑users in
Australia of a social media service in connection with the service;
(ii) equipment that is for use by end‑users in
Australia of a relevant electronic service in connection with the service;
(iii) equipment that is for use by end‑users in
Australia of a designated internet service in connection with the service;
(iv) equipment that is for use by end‑users in
Australia of an internet carriage service in connection with the service.
135
Sections of the online industry
(1) For the purposes of this Division, sections
of the online industry are to be ascertained in accordance with this
section.
(2) For the purposes of this Division, each of the
following groups is a section of the online industry:
(a) the group consisting of providers of social
media services, so far as those services are provided to end‑users in
Australia;
(b) the group consisting of providers of relevant
electronic services, so far as those services are provided to end‑users in
Australia;
(c) the group consisting of providers of
designated internet services, so far as those services are provided to end‑users
in Australia;
(d) the group consisting of providers of internet
search engine services, so far as those services are provided to end‑users in
Australia;
(e) the group consisting of providers of app
distribution services, so far as those services are provided to end‑users in
Australia;
(f) the group consisting of providers of hosting
services, so far as those services host material in Australia;
(g) the group consisting of providers of internet
carriage services, so far as those services are provided to customers in
Australia;
(h) the group consisting of persons who
manufacture, supply, maintain or install any of the following equipment:
(i) equipment that is for use by end‑users in
Australia of a social media service in connection with the service;
(ii) equipment that is for use by end‑users in
Australia of a relevant electronic service in connection with the service;
(iii) equipment that is for use by end‑users in
Australia of a designated internet service in connection with the service;
(iv) equipment that is for use by end‑users in
Australia of an internet carriage service in connection with the service.
136
Participants in a section of the online industry
For
the purposes of this Division, if a person is a member of a group that
constitutes a section of the online industry, the person is a participant
in that section of the online industry.
Subdivision B—General principles relating to industry codes and industry
standards
137
Statement of regulatory policy
(1) The Parliament intends that bodies or
associations that the Commissioner is satisfied represent sections of the
online industry should develop codes (industry codes) that are to apply to
participants in the respective sections of the industry in relation to their
online activities.
(2) The Parliament intends that the Commissioner
should make reasonable efforts to ensure that, for each section of the online
industry, either:
(a) an industry code is registered under this
Division within 6 months after the commencement of this Division; or
(b) an industry standard is registered under this
Division within 12 months after the commencement of this Division.
138
Examples of matters that may be dealt with by industry codes and
industry standards
(1) This section sets out examples of matters that
may be dealt with by industry codes and industry standards.
(2) The applicability of a particular example will
depend on which section of the online industry is involved.
(3) The examples are as follows:
(a) procedures for dealing with class 1 material,
or class 2 material, provided on a social media service;
(b) procedures for dealing with class 1 material,
or class 2 material, provided on a relevant electronic service;
(c) procedures for dealing with class 1 material,
or class 2 material, provided on a designated internet service;
(d) procedures directed towards the achievement of
the objective of ensuring that, in the event that a participant in the
providers of internet carriage services section of the online industry becomes
aware that a hosting service provider is hosting class 1 material, or class 2
material, in Australia, the hosting service provider is told about the
material;
(e) procedures to be followed in order to inform
producers of online content about their legal responsibilities in relation to
that content;
(f) procedures directed towards the achievement of
the objective of ensuring that online accounts are not provided to children
without the consent of a parent or responsible adult;
(g) procedures directed towards the achievement of
the objective of ensuring that customers have the option of subscribing to a
filtered internet carriage service;
(h) giving end‑users information about the
availability, use and appropriate application of online content filtering
software;
(i) providing end‑users with access to
technological solutions to help them limit access to class 1 material and class
2 material;
(j) providing end‑users with advice on how to
limit access to class 1 material and class 2 material;
(k) action to be taken to assist in the
development and implementation of online content filtering technologies
(including labelling technologies);
(l) promoting awareness of the safety issues
associated with social media services;
(m) promoting awareness of the safety issues
associated with relevant electronic services;
(n) promoting awareness of the safety issues
associated with designated internet services;
(o) procedures to be followed in order to deal
with safety issues associated with social media services;
(p) procedures to be followed in order to deal
with safety issues associated with relevant electronic services;
(q) procedures to be followed in order to deal
with safety issues associated with designated internet services;
(r) giving parents and responsible adults
information about how to supervise and control children’s access to material
provided on social media services;
(s) giving parents and responsible adults
information about how to supervise and control children’s access to material
provided on relevant electronic services;
(t) giving parents and responsible adults
information about how to supervise and control children’s access to material
provided on designated internet services;
(u) telling persons about their rights to make
complaints;
(v) procedures to be followed in order to deal
with complaints about class 1 material, or class 2 material, provided on social
media services;
(w) procedures to be followed in order to deal
with complaints about class 1 material, or class 2 material, provided on
relevant electronic services;
(x) procedures to be followed in order to deal
with complaints about class 1 material, or class 2 material, provided on
designated internet services;
(y) procedures to be followed in order to deal
with reports about class 1 material, or class 2 material, provided on social
media services, where the reports are made by or on behalf of end‑users of
those services;
(z) procedures to be followed in order to deal
with reports about class 1 material, or class 2 material, provided on relevant
electronic services, where the reports are made by or on behalf of end‑users of
those services;
(za) procedures to be followed in order to deal
with reports about class 1 material, or class 2 material, provided on
designated internet services, where the reports are made by or on behalf of end‑users
of those services;
(zb) procedures to be followed in order to deal
with complaints about unsolicited electronic messages that promote or advertise
one or more:
(i) websites; or
(ii) distinct parts of websites; or
(iii) apps;
that
enable, or purport to enable, end‑users to access class 1 material or class 2
material;
(zc) if:
(i) class 2 material is provided on a social media
service; and
(ii) the service is provided from a foreign
country; and
(iii) the provider of the service has reasonable
grounds to believe that the material is hosted in Australia;
procedures
to be followed to ensure the Commissioner is notified of the material;
(zd) if:
(i) class 2 material is provided on a relevant
electronic service; and
(ii) the service is provided from a foreign
country; and
(iii) the provider of the service has reasonable
grounds to believe that the material is hosted in Australia;
procedures
to be followed to ensure the Commissioner is notified of the material;
(ze) if:
(i) class 2 material is provided on a designated
internet service; and
(ii) the service is provided from a foreign
country; and
(iii) the provider of the service has reasonable
grounds to believe that the material is hosted in Australia;
procedures
to be followed to ensure the Commissioner is notified of the material;
(zf) the referral to the Commissioner of complaints
about matters, where the complainant is dissatisfied with the way in which the
complaint was dealt with under the code or standard;
(zg) ensuring that end‑users are provided with
information, and support services, relating to online safety for Australians;
(zh) the making and retention of material directed
towards the achievement of the objective of ensuring that, in the event that
new social media services are developed that could put at risk the safety of
children who are end‑users of the services, the Commissioner is informed about
those services;
(zi) the making and retention of material directed
towards the achievement of the objective of ensuring that, in the event that
new relevant electronic services are developed that could put at risk the
safety of children who are end‑users of the services, the Commissioner is
informed about those services;
(zj) the making and retention of material directed
towards the achievement of the objective of ensuring that, in the event that
new designated internet services are developed that could put at risk the
safety of children who are end‑users of the services, the Commissioner is
informed about those services.
Scope
(1) This section applies if an industry code or
industry standard deals with the matter referred to in paragraph 138(3)(v),
(w) or (x).
Escalation
(2) The industry code or industry standard, as the
case may be, must also deal with the matter referred to in paragraph 138(3)(zf).
140
Registration of industry codes
Scope
(1) This section applies if:
(a) the Commissioner is satisfied that a body or
association represents a particular section of the online industry; and
(b) that body or association develops an industry
code that applies to participants in that section of the industry and deals
with one or more matters relating to the online activities of those
participants; and
(c) the body or association gives a copy of the
code to the Commissioner; and
(d) the Commissioner is satisfied that:
(i) to the extent to which the code deals with one
or more matters of substantial relevance to the community—the code provides
appropriate community safeguards for that matter or those matters; and
(ii) to the extent to which the code deals with one
or more matters that are not of substantial relevance to the community—the code
deals with that matter or those matters in an appropriate manner; and
(e) the Commissioner is satisfied that, before
giving the copy of the code to the Commissioner:
(i) the body or association published a draft of
the code and invited members of the public to make submissions to the body or
association about the draft within a specified period; and
(ii) the body or association gave consideration to
any submissions that were received from members of the public within that
period; and
(f) the Commissioner is satisfied that, before
giving the copy of the code to the Commissioner:
(i) the body or association published a draft of
the code and invited participants in that section of the industry to make
submissions to the body or association about the draft within a specified
period; and
(ii) the body or association gave consideration to
any submissions that were received from participants in that section of the
industry within that period; and
(g) the Commissioner has been consulted about the
development of the code.
Registration
(2) The Commissioner may register the code by
including it in the Register of industry codes kept under section 149.
Period of consultation
(3) A period specified under subparagraph (1)(e)(i)
or (1)(f)(i) must run for at least 30 days.
Replacing industry codes
(4) If:
(a) an industry code (the new code) is registered
under this Division; and
(b) the new code is expressed to replace another
industry code;
the other code ceases to be registered
under this Division when the new code is registered.
141
Commissioner may request codes
(1) If the Commissioner is satisfied that a body
or association represents a particular section of the online industry, the
Commissioner may, by written notice given to the body or association, request
the body or association to:
(a) develop an industry code that applies to
participants in that section of the industry and deals with one or more
specified matters relating to the online activities of those participants; and
(b) give the Commissioner a copy of the code
within the period specified in the notice.
(2) The period specified in a notice under subsection (1)
must run for at least 120 days.
(3) The Commissioner may vary a notice under subsection (1)
by extending the period specified in the notice.
(4) Subsection (3) does not limit the
application of subsection 33(3) of the Acts
Interpretation Act 1901.
(5) A notice under subsection (1) may specify
indicative targets for achieving progress in the development of the code (for
example, a target of 60 days to develop a preliminary draft of the code).
141A
Publication of notice where no body or association represents a section
of the online industry
(1) If the Commissioner is satisfied that a
particular section of the online industry is not represented by a body or
association, the Commissioner may publish a notice in the Gazette:
(a) stating that, if such a body or association
were to come into existence within a specified period, the Commissioner would
be likely to give a notice to that body or association under subsection 141(1);
and
(b) setting out the matter or matters relating to
online activities that would be likely to be specified in the subsection 141(1)
notice.
(2) The period specified in a notice under subsection (1)
must run for at least 60 days.
142
Replacement of industry codes
(1) Changes to an industry code are to be achieved
by replacing the code instead of varying the code.
(2) If the replacement code differs only in minor
respects from the original code, section 140 has effect, in relation to
the registration of the code, as if paragraphs 140(1)(e) and (f) of this
Division had not been enacted.
Note: Paragraphs
140(1)(e) and (f) deal with submissions about draft codes.
143
Compliance with industry codes
(1) If:
(a) a person is a participant in a particular
section of the online industry; and
(b) the Commissioner is satisfied that the person
has contravened, or is contravening, an industry code that:
(i) is registered under this Division; and
(ii) applies to participants in that section of the
industry;
the Commissioner may, by written notice
given to the person, direct the person to comply with the industry code.
(2) A person must comply with a direction under subsection (1).
Civil penalty: 30,000 penalty units.
(3) Subsection 93(2) of the Regulatory Powers (Standard Provisions) Act
2014 does not apply in relation to a contravention of subsection (2)
of this section.
144
Formal warnings—breach of industry codes
Scope
(1) This section applies to a person who is a
participant in a particular section of the online industry.
Warning
(2) The Commissioner may issue a formal warning if
the person contravenes an industry code registered under this Division.
Subdivision D—Industry standards
145
Commissioner may determine an industry standard
(1) The Commissioner may, by legislative
instrument, determine a standard that applies to participants in a particular
section of the online industry if:
(a) the Commissioner has made a request under section 141
in relation to the development of an industry code and one or more of the
following conditions is satisfied:
(i) the request is not complied with;
(ii) if a draft code is developed by the body or
association—the draft does not contain appropriate community safeguards to deal
with one or more matters specified in the request;
(iii) if indicative targets for achieving progress
in the development of the code were specified in the notice of request—any of
those indicative targets were not met;
(iv) the request is complied with, but the
Commissioner subsequently refuses to register the code; or
(b) the Commissioner has published a notice under subsection 141A(1)
in relation to a particular section of the online industry that is not represented
by a body or association and all of the following conditions are satisfied:
(i) the notice states that, if such a body or
association were to come into existence within a specified period, the
Commissioner would be likely to give a notice to that body or association under
subsection 141(1);
(ii) the notice sets out one or more matters
relating to the online activities of the participants in that section of the
industry that would be specified in a notice under subsection 141(1);
(iii) no such body or association comes into
existence within the period specified in the notice; or
(c) an industry code that applies to participants
in a particular section of an online industry has been registered under section 140
for at least 180 days and all of the following conditions are met:
(i) the Commissioner is satisfied that the code is
deficient;
(ii) the Commissioner has given the body or
association that developed the code a written notice requesting that
deficiencies in the code be addressed within a specified period;
(iii) the period specified under
subparagraph (ii) ends and the Commissioner is satisfied that the
deficiencies in the code have not been adequately addressed.
Note: For
variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
(1A) For the purposes of
subparagraph (1)(c)(i), an industry code that applies to participants in a
particular section of an online industry and deals with one or more matters
relating to the online activities of those participants is deficient
if:
(a) the code is not operating to provide
appropriate community safeguards in relation to one or more of those matters;
or
(b) the code is not otherwise operating to
regulate adequately participants in that section of the online industry in
relation to that matter or those matters.
(1B) The Commissioner must not determine a standard
under subsection (1) that applies to participants in a particular section
of the online industry unless the Commissioner is satisfied that it is
necessary or convenient for the Commissioner to determine a standard in order
to:
(a) provide appropriate community safeguards in
relation to one or more matters relating to the online activities of those
participants; or
(b) otherwise regulate adequately participants in that
section of the online industry in relation to that matter or those matters.
(2) A standard under this section is to be known
as an industry standard.
(3) The Minister may, by legislative instrument,
give the Commissioner a written direction as to the exercise of the
Commissioner’s powers under this section.
146
Compliance with industry standards
(1) If:
(a) an industry standard that applies to
participants in a particular section of the online industry is registered under
this Division; and
(b) a person is a participant in that section of the online industry;
the person
must comply with the industry standard.
Civil penalty: 30,000 penalty units.
(2) Subsection 93(2) of the Regulatory Powers (Standard Provisions) Act
2014 does not apply in relation to a contravention of subsection (1)
of this section.
147
Formal warnings—breach of industry standards
Scope
(1) This section applies to a person who is a
participant in a particular section of the online industry.
Warning
(2) The Commissioner may issue a formal warning if
the person contravenes an industry standard registered under this Division.
148
Public consultation on industry standards
(1) Before determining or varying an industry
standard, the Commissioner must:
(a) make a copy of the draft available on the
Commissioner’s website; and
(b) publish a notice on the Commissioner’s
website:
(i) stating that the Commissioner has prepared a
draft of the industry standard or variation; and
(ii) inviting interested persons to give written
comments about the draft to the Commissioner within the period specified in the
notice.
(2) The period specified in the notice must run
for at least 30 days after the publication of the notice.
(3) Subsection (1) does not apply to a
variation if the variation is of a minor nature.
(4) If interested persons have given comments in
accordance with a notice under subsection (1), the Commissioner must have
due regard to those comments in determining or varying the industry standard,
as the case may be.
Subdivision E—Register of industry codes and industry standards
149
Commissioner to maintain Register of industry codes and industry
standards
(1) The Commissioner is to maintain a Register in
which the Commissioner includes:
(a) all industry codes that the Commissioner
decides to register under this Division; and
(b) all industry standards; and
(c) all requests made under section 141; and
(d) all directions under section 143.
(2) The Register may be maintained by electronic
means.
(3) The Register is to be made available for
inspection on the Commissioner’s website.
150
Industry standards prevail over inconsistent industry codes
If
an industry code is:
(a) registered under this Division; and
(b) applicable to a person;
the code has no effect to the extent to
which it is inconsistent with an industry standard that is:
(c) registered under this Division; and
(d) applicable to the person.
Division 8—Service provider determinations
151
Service provider determinations
(1) The Commissioner may, by legislative
instrument, determine any or all of the following rules:
(a) rules that apply to providers of social media
services in relation to the provision of social media services;
(b) rules that apply to providers of relevant
electronic services in relation to the provision of relevant electronic
services;
(c) rules that apply to providers of designated
internet services in relation to the provision of designated internet services;
(d) rules that apply to hosting service providers
in relation to the provision of hosting services;
(e) rules that apply to internet service providers
in relation to the supply of internet carriage services.
(2) A determination under subsection (1) is
called a service provider determination.
(3) A service provider determination has effect
only to the extent that:
(a) it is authorised by paragraph 51(v) of
the Constitution (either alone or when read together with
paragraph 51(xxxix) of the Constitution); or
(b) both:
(i) it is authorised by section 122 of the
Constitution; and
(ii) it would have been authorised by
paragraph 51(v) of the Constitution (either alone or when read together
with paragraph 51(xxxix) of the Constitution) if section 51 of the
Constitution extended to the Territories.
(4) The Commissioner must not make a service
provider determination unless the determination relates to a matter specified
in the legislative rules.
(5) A service provider determination may make
provision for or in relation to a particular matter by empowering the Commissioner
to make decisions of an administrative character.
152
Exemptions from service provider determinations
(1) The Minister may, by legislative instrument,
determine any or all of the following:
(a) that a specified provider of a social media
service is exempt from service provider determinations;
(b) that a specified provider of a relevant
electronic service is exempt from service provider determinations;
(c) that a specified provider of a designated
internet service is exempt from service provider determinations;
(d) that a specified hosting service provider is
exempt from service provider determinations;
(e) that a specified internet service provider is
exempt from service provider determinations.
(2) The Minister may, by legislative instrument,
determine any or all of the following:
(a) that a specified provider of a social media
service is exempt from a specified service provider determination;
(b) that a specified provider of a relevant
electronic service is exempt from a specified service provider determination;
(c) that a specified provider of a designated
internet service is exempt from a specified service provider determination;
(d) that a specified hosting service provider is
exempt from a specified service provider determination;
(e) that a specified internet service provider is
exempt from a specified service provider determination.
(3) A determination under this section may be
unconditional or subject to such conditions (if any) as are specified in the
determination.
153
Compliance with service provider rules
A
person must not contravene a service provider rule that applies to the person.
Civil penalty: 500 penalty units.
154
Remedial directions—breach of service provider rules
(1) This section applies if the Commissioner is
satisfied that a person has contravened, or is contravening, a service provider
rule that applies to the person.
(2) The Commissioner may give the person a written
direction requiring the person to take specified action directed towards
ensuring that the provider does not contravene the rule, or is unlikely to
contravene the rule, in the future.
(3) The following are examples of the kinds of
direction that may be given to a person under subsection (2):
(a) a direction that the person implement effective
administrative systems for monitoring compliance with a service provider rule;
(b) a direction that the person implement a system
designed to give the person’s employees, agents and contractors a reasonable
knowledge and understanding of the requirements of a service provider rule, so
far as those requirements affect the employees, agents or contractors
concerned.
(4) A person must comply with a direction under subsection (2).
Civil penalty for contravention of this
subsection: 500 penalty units.
155
Formal warnings—breach of service provider rules
The
Commissioner may issue a formal warning to a person if the Commissioner is
satisfied that the person has contravened, or is contravening, a service
provider rule that applies to the person.
Division 9—Federal Court orders
156
Federal Court may order a person to cease providing a social media
service
(1) If the Commissioner is satisfied that:
(a) a person is the provider of a social media
service; and
(b) there were 2 or more occasions during the
previous 12 months on which the person contravened a civil penalty provision of
this Part; and
(c) as a result of those contraventions, the continued
operation of that social media service represents a significant community
safety risk;
the Commissioner may apply to the Federal
Court for an order that the person cease providing that social media service.
(2) If the Federal Court is satisfied, on such an
application, that:
(a) the person is the provider of a social media
service; and
(b) there were 2 or more occasions during the
previous 12 months on which the person contravened a civil penalty provision of
this Part; and
(c) as a result of those contraventions, the
continued operation of that social media service represents a significant
community safety risk;
the Federal Court may order the person to
cease providing that social media service.
157
Federal Court may order a person to cease providing a relevant
electronic service
(1) If the Commissioner is satisfied that:
(a) a person is the provider of a relevant
electronic service; and
(b) there were 2 or more occasions during the
previous 12 months on which the person contravened a civil penalty provision of
this Part; and
(c) as a result of those contraventions, the continued
operation of that relevant electronic service represents a significant
community safety risk;
the Commissioner may apply to the Federal
Court for an order that the person cease providing that relevant electronic
service.
(2) If the Federal Court is satisfied, on such an
application, that:
(a) the person is the provider of a relevant
electronic service; and
(b) there were 2 or more occasions during the
previous 12 months on which the person contravened a civil penalty provision of
this Part; and
(c) as a result of those contraventions, the
continued operation of that relevant electronic service represents a
significant community safety risk;
the Federal Court may order the person to
cease providing that relevant electronic service.
158
Federal Court may order a person to cease providing a designated
internet service
(1) If the Commissioner is satisfied that:
(a) a person is the provider of a designated internet
service; and
(b) there were 2 or more occasions during the
previous 12 months on which the person contravened a civil penalty provision of
this Part; and
(c) as a result of those contraventions, the
continued operation of that designated internet service represents a
significant community safety risk;
the Commissioner may apply to the Federal
Court for an order that the person cease providing that designated internet
service.
(2) If the Federal Court is satisfied, on such an
application, that:
(a) the person is the provider of a designated internet
service; and
(b) there were 2 or more occasions during the
previous 12 months on which the person contravened a civil penalty provision of
this Part; and
(c) as a result of those contraventions, the
continued operation of that designated internet service represents a
significant community safety risk;
the Federal Court may order the person to
cease providing that designated internet service.
159
Federal Court may order a person to cease supplying an internet carriage
service
(1) If the Commissioner is satisfied that:
(a) a person is the supplier of an internet
carriage service; and
(b) there were 2 or more occasions during the
previous 12 months on which the person contravened a civil penalty provision of
this Part; and
(c) as a result of those contraventions, the
continued operation of that internet carriage service represents a significant
community safety risk;
the Commissioner may apply to the Federal
Court for an order that the person cease supplying that internet carriage
service.
(2) If the Federal Court is satisfied, on such an
application, that:
(a) the person is the supplier of an internet
carriage service; and
(b) there were 2 or more occasions during the
previous 12 months on which the person contravened a civil penalty provision of
this Part; and
(c) as a result of those contraventions, the
continued operation of that internet carriage service represents a significant
community safety risk;
the Federal Court may order the person to
cease supplying that internet carriage service.
Division 10—Commissioner may obtain advice from the
Classification Board
160
Commissioner may obtain advice from the Classification Board
(1) The Commissioner may request the
Classification Board to:
(a) advise the Commissioner whether particular
material is class 1 material; or
(b) advise the Commissioner whether particular
material is class 2 material; or
(c) advise the Commissioner whether particular
material is class 2 material covered by paragraph 107(1)(a); or
(d) advise the Commissioner whether particular
material is class 2 material covered by paragraph 107(1)(b); or
(e) advise the Commissioner whether particular
material is class 2 material covered by paragraph 107(1)(c); or
(f) advise the Commissioner whether particular
material is class 2 material covered by paragraph 107(1)(d); or
(g) advise the Commissioner whether particular
material is class 2 material covered by paragraph 107(1)(e); or
(h) advise the Commissioner whether particular
material is class 2 material covered by paragraph 107(1)(f); or
(i) advise the Commissioner whether particular
material is class 2 material covered by paragraph 107(1)(g); or
(j) advise the Commissioner whether particular
material is class 2 material covered by paragraph 107(1)(h); or
(k) advise the Commissioner whether particular
material is class 2 material covered by paragraph 107(1)(i); or
(l) advise the Commissioner whether particular
material is class 2 material covered by paragraph 107(1)(j); or
(m) advise the Commissioner whether particular
material is class 2 material covered by paragraph 107(1)(k); or
(n) advise the Commissioner whether particular
material is class 2 material covered by paragraph 107(1)(l).
(2) The Classification Board may give the advice
requested by the Commissioner.
(3) Subsection (2) does not, by implication,
limit the matters that may be taken into account by the Commissioner in
considering:
(a) whether particular material is class 1
material; or
(b) whether particular material is class 2
material; or
(c) whether particular material is class 2
material covered by paragraph 107(1)(a); or
(d) whether particular material is class 2
material covered by paragraph 107(1)(b); or
(e) whether particular material is class 2
material covered by paragraph 107(1)(c); or
(f) whether particular material is class 2
material covered by paragraph 107(1)(d); or
(g) whether particular material is class 2
material covered by paragraph 107(1)(e); or
(h) whether particular material is class 2
material covered by paragraph 107(1)(f); or
(i) whether particular material is class 2
material covered by paragraph 107(1)(g); or
(j) whether particular material is class 2
material covered by paragraph 107(1)(h); or
(k) whether particular material is class 2
material covered by paragraph 107(1)(i); or
(l) whether particular material is class 2
material covered by paragraph 107(1)(j); or
(m) whether particular material is class 2
material covered by paragraph 107(1)(k); or
(n) whether particular material is class 2
material covered by paragraph 107(1)(l).
161
Simplified outline of this Part
• A civil penalty provision in this Act is enforceable under Part 4 of the Regulatory Powers (Standard Provisions) Act
2014.
• The following enforcement powers are available:
(a) infringement
notices;
(b) enforceable
undertakings;
(c) injunctions.
Enforceable civil penalty provision
(1) A civil penalty provision in this Act is enforceable
under Part 4 of the Regulatory
Powers (Standard Provisions) Act 2014.
Note: Part 4
of the Regulatory Powers (Standard
Provisions) Act 2014 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.
Authorised applicant
(2) For the purposes of Part 4 of the Regulatory Powers (Standard Provisions) Act
2014, the Commissioner is an authorised applicant in relation to a civil
penalty provision in this Act.
Relevant court
(3) For the purposes of Part 4 of the Regulatory Powers (Standard Provisions) Act
2014, the Federal Court of Australia and the Federal Circuit and Family
Court of Australia (Division 2) are relevant courts in relation to a civil
penalty provision in this Act.
Extension to external Territories etc.
(4) Part 4 of the Regulatory Powers (Standard Provisions) Act 2014, as it applies in
relation to a civil penalty provision in this Act, extends to:
(a) every external Territory; and
(b) acts, omissions, matters and things outside
Australia.
Provisions subject to an infringement
notice
(1) The following provisions of this Act are
subject to an infringement notice under Part 5 of the Regulatory Powers (Standard Provisions) Act 2014:
(a) section 50;
(b) section 53;
(c) section 57;
(d) section 60;
(da) section 63D;
(daa) section 63DA;
(dab) section 63DB;
(db) section 63H;
(e) section 67;
(f) section 75;
(g) section 80;
(h) section 83;
(i) section 91;
(j) section 111;
(k) section 116;
(l) section 121;
(m) section 125;
(n) section 129;
(o) section 143;
(p) section 146.
Note: Part 5
of the Regulatory Powers (Standard
Provisions) Act 2014 creates a framework for using infringement notices in
relation to provisions.
Infringement officer
(2) For the purposes of Part 5 of the Regulatory Powers (Standard Provisions) Act
2014, a member of the staff of the ACMA authorised, in writing, by the
Commissioner for the purposes of this subsection is an infringement officer in
relation to the provisions mentioned in subsection (1).
Relevant chief executive
(3) For the purposes of Part 5 of the Regulatory Powers (Standard Provisions) Act
2014, the Commissioner is the relevant chief executive in relation to the
provisions mentioned in subsection (1).
(4) The relevant chief executive may, in writing,
delegate any or all of the relevant chief executive’s powers and functions
under Part 5 of the Regulatory
Powers (Standard Provisions) Act 2014 to a person who is:
(a) a member of the staff of the ACMA; and
(b) an SES employee or an acting SES employee.
(5) A person exercising powers or performing
functions under a delegation under subsection (4) must comply with any
directions of the relevant chief executive.
Extension to external Territories etc.
(6) Part 5 of the Regulatory Powers (Standard Provisions) Act 2014, as it applies in
relation to the provisions mentioned in subsection (1), extends to:
(a) every external Territory; and
(b) acts, omissions, matters and things outside
Australia.
Enforceable provisions
(1) The following provisions of this Act are
enforceable under Part 6 of the Regulatory
Powers (Standard Provisions) Act 2014:
(a) section 50;
(b) section 53;
(c) section 57;
(d) section 60;
(da) section 63D;
(daa) section 63DA;
(dab) section 63DB;
(db) section 63H;
(e) section 67;
(f) section 75;
(g) section 80;
(h) section 83;
(i) section 91;
(j) section 103;
(k) section 111;
(l) section 116;
(m) section 121;
(n) section 125;
(o) section 129;
(p) section 143;
(q) section 146.
Authorised person
(2) The Commissioner is an authorised person in
relation to the provisions mentioned in subsection (1) for the purposes of
Part 6 of the Regulatory Powers
(Standard Provisions) Act 2014.
Relevant court
(3) The Federal Court of Australia and the Federal
Circuit and Family Court of Australia (Division 2) are relevant courts in
relation to the provisions mentioned in subsection (1) for the purposes of
Part 6 of the Regulatory Powers
(Standard Provisions) Act 2014.
Extension to external Territories etc.
(4) Part 6 of the Regulatory Powers (Standard Provisions) Act 2014, as it applies in
relation to the provisions mentioned in subsection (1), extends to:
(a) every external Territory; and
(b) acts, omissions, matters and things outside
Australia.
Enforceable provisions
(1) The following provisions are enforceable under
Part 7 of the Regulatory Powers
(Standard Provisions) Act 2014:
(a) section 50;
(b) section 53;
(c) section 57;
(d) section 60;
(da) section 63D;
(daa) section 63DA;
(dab) section 63DB;
(db) section 63H;
(e) section 67;
(f) section 71;
(g) section 75;
(h) section 80;
(i) section 83;
(j) section 91;
(j) section 103;
(l) section 111;
(m) section 116;
(n) section 121;
(o) section 125;
(p) section 129;
(q) section 143;
(r) section 146;
(s) section 195.
Authorised person
(2) The Commissioner is an authorised person in
relation to the provisions mentioned in subsection (1) for the purposes of
Part 7 of the Regulatory Powers
(Standard Provisions) Act 2014.
Relevant court
(3) The Federal Court of Australia and the Federal
Circuit and Family Court of Australia (Division 2) are relevant courts in
relation to the provisions mentioned in subsection (1) for the purposes of
Part 7 of the Regulatory Powers
(Standard Provisions) Act 2014.
Extension to external Territories etc.
(4) Part 7 of the Regulatory Powers (Standard Provisions) Act 2014, as it applies in
relation to the provisions mentioned in subsection (1), extends to:
(a) every external Territory; and
(b) acts, omissions, matters and things outside
Australia.
Part 11—Administrative provisions relating to the Commissioner
166
Simplified outline of this Part
• The Commissioner is to be appointed by the
Minister.
• The Commissioner may delegate the
Commissioner’s functions and powers.
• The Commissioner must prepare an annual
report.
• The ACMA must assist the Commissioner.
• The Minister may give directions to the
Commissioner.
Division 2—Appointment of the Commissioner
167
Appointment of the Commissioner
(1) The Commissioner is to be appointed by the
Minister by written instrument.
(2) A person is not eligible for appointment as
the Commissioner unless the Minister is satisfied that the person has:
(a) substantial experience or knowledge; and
(b) significant standing;
in at least one of the following fields:
(c) the operation of social media services;
(d) the operation of the internet industry;
(e) public engagement on issues relating to online
safety;
(f) public policy in relation to the
communications sector.
(3) The Commissioner holds office on a full‑time
basis.
168
Period of appointment for the Commissioner
The
Commissioner holds office for the period specified in the instrument of
appointment. The period must not exceed 5 years.
Note: The
Commissioner may be reappointed: see the Acts
Interpretation Act 1901.
(1) The Minister may appoint a person to act as
the Commissioner:
(a) during a vacancy in the office of the
Commissioner (whether or not an appointment has previously been made to the
office); or
(b) during any period, or during all periods, when
the Commissioner:
(i) is absent from duty or from Australia; or
(ii) is, for any reason, unable to perform the
duties of the office.
Note: For
rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
(2) A person is not eligible for appointment to
act as the Commissioner unless the person is eligible for appointment as the
Commissioner.
170
Application of finance law
For
the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013), the
Commissioner is an official of the ACMA.
Division 3—Terms and conditions for the Commissioner
171
Remuneration and allowances
(1) The Commissioner is to be paid the
remuneration that is determined by the Remuneration Tribunal. If no
determination of that remuneration by the Tribunal is in operation, the
Commissioner is to be paid the remuneration that is prescribed by the
legislative rules.
(2) The Commissioner is to be paid the allowances
that are prescribed by the legislative rules.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
(1) The Commissioner has the recreation leave
entitlements that are determined by the Remuneration Tribunal.
(2) The Minister may grant the Commissioner leave
of absence (other than recreation leave) on the terms and conditions, as to
remuneration or otherwise, that the Minister determines.
The
Commissioner must not engage in paid employment outside the duties of the
Commissioner’s office without the Minister’s approval.
174
Disclosure of interests to the Minister
The Commissioner must give written notice to
the Minister of all interests, pecuniary or otherwise, that the Commissioner
has or acquires, and that conflict or could conflict with the proper
performance of the Commissioner’s functions.
(1) The Commissioner may resign the Commissioner’s
appointment by giving the Minister a written resignation.
(2) The resignation takes effect on the day it is
received by the Minister or, if a later day is specified in the resignation, on
that later day.
176
Termination of appointment
(1) The Minister may terminate the appointment of
the Commissioner:
(a) for misbehaviour; or
(b) if the Commissioner is unable to perform the
duties of the Commissioner’s office because of physical or mental incapacity.
(2) The Minister may terminate the appointment of
the Commissioner if:
(a) the Commissioner:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the
relief of bankrupt or insolvent debtors; or
(iii) compounds with the Commissioner’s creditors;
or
(iv) makes an assignment of the Commissioner’s
remuneration for the benefit of the Commissioner’s creditors; or
(b) the Commissioner is absent, except on leave of
absence, for 14 consecutive days or for 28 days in any 12 months; or
(c) the Commissioner engages, except with the
Minister’s approval, in paid employment outside the duties of the
Commissioner’s office (see section 173); or
(d) the Commissioner fails, without reasonable
excuse, to comply with section 174.
177
Other terms and conditions
The
Commissioner holds office on the terms and conditions (if any) in relation to
matters not covered by this Act that are determined by the Minister.
(1) The powers of the Commissioner include, but
are not limited to, the power to enter into contracts.
(2) Any contract entered into by the Commissioner
is to be entered into on behalf of the Commonwealth.
(3) Any real or personal property held by the
Commissioner is held for and on
behalf of the Commonwealth.
(4) Any money received by the Commissioner is
received for and on behalf of the Commonwealth.
(5) The Commissioner cannot hold real or personal
property, or money, on trust for a person other than the Commonwealth.
Note: The
Commonwealth may hold real or personal property or money on trust.
(6) To avoid doubt, a right to sue is taken not to
be personal property for the purposes of subsection (3).
179
Commissioner’s liabilities are Commonwealth liabilities
(1) Any financial liabilities of the Commissioner
are taken to be liabilities of the Commonwealth.
(2) For the purposes of this section, financial
liability means a liability to pay a person an amount, where the
amount, or the method for working out the amount, has been determined.
180
Commissioner has privileges and immunities of the Crown
The
Commissioner has the privileges and immunities of the Crown in right of the
Commonwealth.
181
Delegation by the Commissioner to a member of the staff of the ACMA etc.
(1) The Commissioner may, by writing, delegate any
or all of the Commissioner’s functions or powers to:
(a) a member of the staff of the ACMA; or
(b) a person whose services are made available to
the ACMA under paragraph 55(1)(a) of the Australian Communications and
Media Authority Act 2005;
if the member or person is:
(c) an SES employee; or
(d) an acting SES employee; or
(e) an APS employee who holds or performs the
duties of:
(i) an Executive Level 1 or 2 position; or
(ii) an equivalent position; or
(f) an APS employee who holds or performs the
duties of:
(i) an APS 6 position; or
(ii) an equivalent position.
Note: The
expressions SES employee and acting SES employee are defined in
the Acts Interpretation Act 1901.
(2) A delegate must comply with any written directions
of the Commissioner.
(3) Subsection (1) does not apply to a power
to make, vary or revoke a legislative instrument.
(4) Subsection (1) of this section does not
apply to a function or power conferred by subsection 220A(1) (which deals
with the formulation or variation of the internal review scheme).
182
Delegation by the Commissioner to a contractor engaged by the Commissioner
(1) The Commissioner may, by writing, delegate any
or all of the Commissioner’s functions or powers to a person engaged by the Commissioner
under subsection 185(1).
(2) A delegate must comply with any written
directions of the Commissioner.
(3) Subsection (1) does not apply to a power
to make, vary or revoke a legislative instrument.
(3A) Subsection (1) of this section does not
apply to a function or power conferred by subsection 220A(1) (which deals
with the formulation or variation of the internal review scheme).
(3B) Subsection (1) of this section does not
apply to a function or power conferred by the internal review scheme (see section 220A).
(4) Subsection (1) does not apply to a function
or power conferred by any of the following provisions:
(a) section 49;
(b) section 56;
(c) section 65;
(d) section 66;
(e) section 70;
(f) section 77;
(g) section 78;
(h) section 79;
(i) section 83;
(j) section 88;
(k) section 89;
(l) section 90;
(m) section 99;
(n) section 109;
(o) section 110;
(p) section 114;
(q) section 115;
(r) section 119;
(s) section 120;
(t) section 124;
(u) section 128;
(v) section 143;
(w) section 154;
(x) section 156;
(y) section 157;
(z) section 158;
(za) section 159;
(zb) section 194;
(zc) section 199;
(zd) section 200;
(ze) section 203.
(5) Subsection (1) does not apply to a
function or power conferred by the Regulatory
Powers (Standard Provisions) Act 2014.
(1) The Commissioner must, as soon as practicable
after the end of each financial year, prepare and give to the Minister, for presentation
to the Parliament, a report on the operations of the Commissioner during that
year.
Note: See
also section 34C of the Acts
Interpretation Act 1901, which contains extra rules about annual reports.
(2) A report under subsection (1) relating to
a financial year must set out the following:
(aa) the number of objection notices given to the
Commissioner under section 33 during that year;
(a) the number of notices given by the
Commissioner under section 49 during that year;
(b) the number of notices given by the
Commissioner under section 56 during that year;
(c) the number of notices given by the
Commissioner under section 65 during that year;
(d) the number of notices given by the
Commissioner under section 66 during that year;
(e) the number of notices given by the
Commissioner under section 70 during that year;
(f) the number of notices given by the
Commissioner under section 77 during that year;
(g) the number of notices given by the
Commissioner under section 78 during that year;
(h) the number of notices given by the
Commissioner under section 79 during that year;
(i) the number of directions given by the
Commissioner under section 83 during that year;
(j) the number of notices given by the
Commissioner under section 88 during that year;
(k) the number of notices given by the
Commissioner under section 89 during that year;
(l) the number of notices given by the
Commissioner under section 90 during that year;
(la) the number of requests made by the
Commissioner under section 95 during that year;
(m) the number of notices given by the
Commissioner under section 99 during that year;
(n) the number of notices given by the
Commissioner under section 109 during that year;
(o) the number of notices given by the
Commissioner under section 110 during that year;
(p) the number of notices given by the
Commissioner under section 114 during that year;
(q) the number of notices given by the
Commissioner under section 115 during that year;
(r) the number of notices given by the
Commissioner under section 119 during that year;
(s) the number of notices given by the
Commissioner under section 120 during that year;
(t) the number of notices given by the
Commissioner under section 124 during that year;
(u) the number of notices given by the
Commissioner under section 128 during that year;
(v) the number of notices given by the
Commissioner under section 143 during that year;
(w) the number of directions given by the
Commissioner under section 154 during that year;
(x) the number of applications made by the
Commissioner under section 156 during that year;
(y) the number of applications made by the
Commissioner under section 157 during that year;
(z) the number of applications made by the
Commissioner under section 158 during that year;
(za) the number of applications made by the
Commissioner under section 159 during that year;
(zb) the number of notices given by the
Commissioner under section 194 during that year;
(zc) the number of notices given by the
Commissioner under section 199 during that year;
(zd) the number of notices given by the
Commissioner under section 203 during that year;
(ze) the number of decisions that were reviewed by
the Commissioner under the internal review scheme (see section 220A)
during that year;
(zf) the number of applications that were received
by the Commissioner under the internal review scheme (see section 220A)
during that year;
(zg) the number of informal notices given, and
informal requests made, by the Commissioner to a person in relation to cyber‑bullying
material targeted at an Australian child during that year;
(zh) the number of informal notices given, and
informal requests made, by the Commissioner to a person in relation to non‑consensual
sharing of intimate images during that year;
(zi) the number of informal notices given, and
informal requests made, by the Commissioner to a person in relation to cyber‑abuse
material targeted at an Australian adult during that year;
(zj) the number of informal notices given, and
informal requests made, by the Commissioner to a person in relation to material
that depicts abhorrent violent conduct during that year;
(zk) the number of informal notices given, and
informal requests made, by the Commissioner to a person in relation to class 1
material during that year;
(zl) the number of informal notices given, and
informal requests made, by the Commissioner to a person in relation to class 2
material during that year;
(zm) the number and percentage of complaints made
to the Commissioner during that year for cyber‑bullying material targeted at an
Australian child by ground or category of harm, with such grounds or categories
of harm to be determined by the Commissioner;
(zn) the number and percentage of complaints made
to the Commissioner during that year for non‑consensual sharing of intimate
images by ground or category of harm, with such grounds or categories of harm
to be determined by the Commissioner;
(zo) the number and percentage of complaints made
to the Commissioner during that year for cyber‑abuse material targeted at an
Australian adult by ground or category of harm, with such grounds or categories
of harm to be determined by the Commissioner;
(zp) the number and percentage of complaints made
to the Commissioner during that year under the online content scheme by ground
or category of harm, with such grounds or categories of harm to be determined
by the Commissioner.
(1) The Commissioner may, by writing, establish
advisory committees to assist the Commissioner in performing any of the
Commissioner’s functions.
(2) An advisory committee consists of such persons
as the Commissioner from time to time appoints to the committee.
(3) The Commissioner may revoke a person’s
appointment to an advisory committee.
(4) The Commissioner may give an advisory
committee written directions as to:
(a) the way in which the committee is to carry out
its functions; and
(b) the procedures to be followed in relation to
meetings.
(5) An appointment to an advisory committee is not
a public office within the meaning of the Remuneration Tribunal Act 1973.
184
Assistance to the Commissioner
(1) The ACMA must:
(a) assist the Commissioner to perform the
Commissioner’s functions and exercise the Commissioner’s powers; and
(b) do so to such extent as the Commissioner
reasonably requires.
(2) The assistance may include the following:
(a) the provision of advice;
(b) the making available of resources and
facilities;
(c) the making available of the Consumer
Consultative Forum established by the ACMA to assist the Commissioner to
perform the Commissioner’s functions in relation to matters affecting
Australians.
Members of the staff of the ACMA
(3) The ACMA must:
(a) make available members of the staff of the
ACMA to assist the Commissioner to perform the Commissioner’s functions and
exercise the Commissioner’s powers, so long as the Commissioner considers that
those members have the skills, qualifications or experience necessary to so assist
the Commissioner; and
(b) do so to such extent as the Commissioner
reasonably requires.
(4) When performing services for the Commissioner,
a member of the staff of the ACMA is subject to the directions of the
Commissioner.
Ministerial directions
(5) The Minister may, by legislative instrument,
give directions to the ACMA in relation to the performance of its functions, or
the exercise of its powers, under this section.
Note 1: For
variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
Note 2: Section 42
(disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to the
direction (see regulations made for the purposes of paragraphs 44(2)(b) and
54(2)(b) of that Act).
(6) The ACMA must comply with a direction under subsection (5).
Deemed members of the staff of the
ACMA
(7) For the purposes of this section, if a person
is an officer or employee whose services are made available to the ACMA under
paragraph 55(1)(a) of the Australian
Communications and Media Authority Act 2005, the person is taken to be a member of the staff of the ACMA.
185
Contractors engaged by the Commissioner
(1) The Commissioner may, on behalf of the
Commonwealth, engage persons to assist the Commissioner to perform the
Commissioner’s functions and exercise the Commissioner’s powers.
(2) The persons are to be engaged on the terms and
conditions that the Commissioner determines in writing.
(3) When performing services for the Commissioner,
a person engaged under subsection (1) is subject to the directions of the
Commissioner.
186
Commissioner not subject to direction by the ACMA etc.
To
avoid doubt, the Commissioner is not subject to direction by:
(a) the ACMA; or
(b) a member or associate member of the ACMA; or
(c) a member of the staff of the ACMA;
in relation to the performance of a
function, or the exercise of a power, by the Commissioner.
(1) The Commissioner may, on behalf of the
Commonwealth, engage persons having suitable qualifications and experience as
consultants to the Commissioner.
(2) The consultants are to be engaged on the terms
and conditions that the Commissioner determines in writing.
188
Minister may give directions to the Commissioner
(1) The Minister may, by legislative instrument,
give directions to the Commissioner about the performance of the Commissioner’s
functions or the exercise of the Commissioner’s powers.
Note 1: For
variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
Note 2: Section 42
(disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to the
direction (see regulations made for the purposes of paragraphs 44(2)(b) and
54(2)(b) of that Act).
(2) A direction under subsection (1) must be
of a general nature only.
(3) The Commissioner must comply with a direction
under subsection (1).
Part 12—Online Safety Special Account
189
Simplified outline of this Part
• The Online Safety Special Account is
continued in existence.
190
Online Safety Special Account
(1) The Online Safety Special Account is continued
in existence.
(2) The Account is a special account for the
purposes of the Public Governance,
Performance and Accountability Act 2013.
(3) The Account is to be administered by the ACMA.
(4) An amount must not be debited from the Account
without the written approval of the Commissioner.
Determination
(1) The Minister may, by writing, determine that a
specified amount is to be:
(a) debited against the appropriation for the ACMA
departmental item in a specified Appropriation Act; and
(b) credited to the Online Safety Special Account.
(2) A determination under subsection (1) is a
legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to
the determination.
ACMA departmental item
(3) For the purposes of the application of this
section to an Appropriation Act, ACMA departmental item means a
departmental item (within the meaning of that Act) that relates to the ACMA.
The
purposes of the Online Safety Special Account are as follows:
(a) to enhance online safety for Australians;
(b) to make grants under paragraph 27(1)(g);
(c) to pay:
(i) remuneration, and other employment‑related
costs and expenses, in respect of APS employees whose duties relate to the
performance of the Commissioner’s functions or the exercise of the
Commissioner’s powers; and
(ii) any other costs, expenses and other
obligations incurred by the Commonwealth in connection with the performance of
the Commissioner’s functions or the exercise of the Commissioner’s powers.
Note: See
section 80 of the Public Governance,
Performance and Accountability Act 2013 (which deals with special
accounts).
Part 13—Information‑gathering powers
193
Simplified outline of this Part
• The Commissioner may obtain the following
information about an end‑user of a social media service, relevant electronic
service or designated internet service:
(a) information
about the identity of the end‑user;
(b) the
contact details of the end‑user.
194
Commissioner may obtain end‑user identity information or contact details
Scope
(1) This section applies to a person if:
(a) the person is the provider of:
(i) a social media service; or
(ii) a relevant electronic service; or
(iii) a designated internet service; and
(b) the Commissioner believes on reasonable
grounds that the person has:
(i) information about the identity of an end‑user
of the service; or
(ii) contact details of an end‑user of the service;
and
(c) the Commissioner believes on reasonable
grounds that the information is, or the contact details are, relevant to the
operation of this Act.
Requirement
(2) The Commissioner may, by written notice given
to the person, require the person:
(a) if subparagraph (1)(b)(i) applies—to give
to the Commissioner, within the period and in the manner and form specified in
the notice, any such information; or
(b) if subparagraph (1)(b)(ii) applies—to
give to the Commissioner, within the period and in the manner and form
specified in the notice, any such contact details.
A
person must comply with a requirement under section 194 to the extent that
the person is capable of doing so.
Civil penalty: 100 penalty units.
(1) A person is not excused from giving
information or contact details under section 194 on the ground that the
information or contact details might tend to incriminate the person.
(2) However, in the case of an individual:
(a) the information or contact details given; or
(b) giving the information or contact details; or
(c) any information, document or thing obtained as
a direct or indirect consequence of giving the information or contact details;
is not admissible in evidence against the
individual:
(d) in civil proceedings for the recovery of a
penalty (other than proceedings for the recovery of a penalty under section 195);
or
(e) in criminal proceedings (other than
proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this
Part).
(3) If, at general law, an individual would
otherwise be able to claim the privilege against self‑exposure to a penalty
(other than a penalty for an offence) in relation to giving information or
contact details under section 194, the individual is not excused from
giving information or contact details under that section on that ground.
Note: A
body corporate is not entitled to claim the privilege against self‑exposure to
a penalty.
197
Simplified outline of this Part
• The Commissioner may exercise certain
powers for the purposes of an investigation.
This
Part applies to an investigation by the Commissioner under section 31, 34,
37 or 42.
199
Notice requiring appearance for examination
For
the purposes of an investigation by the Commissioner, the Commissioner may give
a written notice to a person summoning the person:
(a) to attend before:
(i) the Commissioner; or
(ii) a delegate of the Commissioner named in the
notice;
to
produce documents or to answer questions; or
(b) to provide documents or other information to
the Commissioner;
relevant to the subject matter of the
investigation.
200
Examination on oath or affirmation
(1) If a person is summoned to attend before the
Commissioner or a delegate of the Commissioner, the Commissioner or delegate
may examine the person on oath or affirmation and, for that purpose:
(a) may require the person to take an oath or make
an affirmation; and
(b) may administer an oath or affirmation to the
person.
(2) The oath or affirmation is to be an oath or
affirmation that the statements the person will make will be true to the best
of the person’s knowledge or belief.
(3) The Commissioner or delegate may require the
person to answer a question that is put to the person at an examination and
that is relevant to a matter that the Commissioner is investigating or is to
investigate.
201
Examination to take place in private
The
examination of a person for the purposes of an investigation must be conducted
in private, but the person is entitled to have an adviser present at the
examination.
202
Record to be made of examination
(1) If a person is examined by the Commissioner or
a delegate of the Commissioner, a record must be made of the examination and
the person is entitled to be given a written copy of the record.
(2) If the record of the examination of a person
is made in electronic form, the person is, if the person so requests, to be
given a copy of the record in that form.
203
Production of documents for inspection
The
Commissioner may, by written notice given to a person, require the person:
(a) to make available for inspection by:
(i) the Commissioner; or
(ii) a delegate of the Commissioner;
any
documents in the possession of the person that may contain information relevant
to the subject matter of an investigation by the Commissioner; and
(b) to permit the Commissioner or the delegate, as
the case may be, to make copies of any such documents.
204
Protection of persons giving evidence
A
person who gives evidence or produces documents at an investigation by the
Commissioner has the same protection as a witness in a proceeding in the High
Court.
205
Non‑compliance with requirement to give evidence
(1) A person required to answer a question, to
give evidence or to produce documents under this Part must not:
(a) when required to take an oath or make an
affirmation, refuse or fail to take the oath or make the affirmation; or
(b) refuse or fail to answer a question that the person is required to
answer; or
(c) refuse or fail to produce a document that the
person is required to produce.
Penalty: Imprisonment
for 12 months.
(2) A person required to answer a question, to
give evidence or to produce documents under this Part must not:
(a) when required to take an oath or make an
affirmation, refuse or fail to take the oath or make the affirmation; or
(b) refuse or fail to answer a question that the person is required to
answer; or
(c) refuse or fail to produce a document that the
person is required to produce.
Civil penalty: 100 penalty units.
(3) Subsections (1) and (2) do not apply if
the person has a reasonable excuse.
Note: A
defendant bears an evidential burden in relation to the matters mentioned in
this subsection: see subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers (Standard Provisions) Act 2014.
(4) Subsections (1) and (2) do not apply to a
refusal to answer a question, or a refusal to produce a document, if the answer
to the question or the production of the document would tend to incriminate the
person.
Note: A
defendant bears an evidential burden in relation to the matters mentioned in
this subsection: see subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers (Standard Provisions) Act 2014.
(5) Subsections (1) and (2) do not apply if:
(a) the person is a journalist; and
(b) the answer to the question or the production
of the document would tend to disclose the identity of a person who supplied
information in confidence to the journalist.
Part 15—Disclosure of information
206
Simplified outline of this Part
• The Commissioner may disclose information
in certain circumstances.
Note: See
also section 224 (referral of matters to law enforcement agencies).
This
Part applies to 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 this Act.
The
Commissioner may disclose information to the Minister.
209
Disclosure to Secretary, or APS employees, for advising the Minister
For
the purpose of advising the Minister, the Commissioner may disclose information
to:
(a) the Secretary; or
(b) an APS employee in the Department who is
authorised, in writing, by the Secretary for the purposes of this section.
210
Disclosure to a member of the staff of the ACMA etc.
The
Commissioner may disclose information to:
(a) a member of the staff of the ACMA; or
(b) an officer or employee whose services are made
available to the ACMA under paragraph 55(1)(a) of the Australian Communications and Media Authority Act 2005; or
(c) a person engaged under subsection 185(1);
or
(d) a consultant engaged under section 187;
for purposes relating to the performance
of the Commissioner’s functions or the exercise of the Commissioner’s powers.
211
Disclosure to Royal Commissions
(1) The Commissioner may disclose information to a
Royal Commission (within the meaning of the Royal
Commissions Act 1902).
(2) The Commissioner may, by writing, impose
conditions to be complied with in relation to information disclosed under subsection (1).
(3) An instrument made under subsection (2)
that imposes conditions relating to one particular disclosure identified in the
instrument is not a legislative instrument.
(4) Otherwise, an instrument made under subsection (2)
is a legislative instrument.
212
Disclosure to certain authorities
(1) The Commissioner may disclose information to
any of the following authorities if the Commissioner is satisfied that the
information will enable or assist the authority to perform or exercise any of
the authority’s functions or powers:
(a) the ACMA;
(b) the National Children’s Commissioner;
(c) the Office of the Australian Information
Commissioner;
(d) the Secretary of the Department administered
by the Minister administering the Classification
(Publications, Films and Computer Games) Act 1995 or an APS employee in
that Department whose duties relate to that Act;
(e) the Australian Federal Police;
(f) the Director of Public Prosecutions;
(g) an authority of a State or Territory
responsible for enforcing one or more laws of the State or Territory;
(h) an authority of a foreign country responsible
for regulating either or both of the following matters:
(i) matters relating to the capacity of individuals
to use social media services, relevant electronic services and designated
internet services in a safe manner;
(ii) matters relating to material that is
accessible to, or delivered to, the end‑users of social media services,
relevant electronic services and designated internet services;
(i) an authority of a foreign country responsible
for enforcing one or more laws of the foreign country relating to either or
both of the following matters:
(i) matters relating to the capacity of
individuals to use social media services, relevant electronic services and
designated internet services in a safe manner;
(ii) matters relating to material that is
accessible to, or delivered to, the end‑users of social media services,
relevant electronic services and designated internet services.
(2) The Commissioner may, by writing, impose
conditions to be complied with in relation to information disclosed under subsection (1).
(3) An instrument made under subsection (2)
that imposes conditions relating to one particular disclosure identified in the
instrument is not a legislative instrument.
(4) Otherwise, an instrument made under subsection (2)
is a legislative instrument.
213
Disclosure to teachers or school principals
(1) The Commissioner may disclose information to a
teacher or school principal if the Commissioner is satisfied that the
information will assist in the resolution of a complaint made under section 30.
(2) The Commissioner may, by writing, impose
conditions to be complied with in relation to information disclosed under subsection (1).
(3) An instrument made under subsection (2)
that imposes conditions relating to one particular disclosure identified in the
instrument is not a legislative instrument.
(4) Otherwise, an instrument made under subsection (2)
is a legislative instrument.
214
Disclosure to parents or guardians
(1) The Commissioner may 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 section 30.
(2) The Commissioner may, by writing, impose
conditions to be complied with in relation to information disclosed under subsection (1).
(3) An instrument made under subsection (2)
that imposes conditions relating to one particular disclosure identified in the
instrument is not a legislative instrument.
(4) Otherwise, an instrument made under subsection (2)
is a legislative instrument.
The
Commissioner may disclose information that relates to the affairs of a person
if:
(a) the person has consented to the disclosure;
and
(b) the disclosure is in accordance with that
consent.
216
Disclosure of publicly available information
The
Commissioner may disclose information if it is already publicly available.
217
Disclosure of summaries and statistics
The
Commissioner may disclose:
(a) summaries of de‑identified information; and
(b) statistics derived from de‑identified
information.
218
Relationship with Parts 13 and 15 of the Telecommunications Act 1997
This
Part does not authorise a disclosure of information that is prohibited by Part 13
or 15 of the Telecommunications Act 1997.
219
Simplified outline of this Part
• This Part deals with miscellaneous
matters, such as review of decisions and legislative rules.
220
Review of decisions by the Administrative Review Tribunal
Notice under section 49 or 56
(1) An application may be made to the Administrative
Review Tribunal for a review of a decision of the Commissioner to give a notice
under section 49 or 56.
Removal notice—cyber‑bullying,
intimate images and cyber‑abuse
(2) An application may be made to the Administrative
Review Tribunal for a review of a decision of the Commissioner under section 65,
77 or 88 to give a removal notice to the provider of:
(a) a social media service; or
(b) a relevant electronic service; or
(c) a designated internet service.
(3) An application under subsection (2) may
only be made by:
(a) the provider of the social media service,
relevant electronic service or designated internet service; or
(b) if the material that is the subject of the
notice was posted on the service by an end‑user of the service—the end‑user.
(4) An application may be made to the Administrative
Review Tribunal for a review of a decision of the Commissioner to refuse to
give the provider of:
(a) a social media service; or
(b) a relevant electronic service; or
(c) a designated internet service;
a section 65, 77 or 88 removal
notice that relates to material provided on the service.
(5) An application under subsection (4) may
only be made:
(a) by a person who made a section 30, 32 or
36 complaint about the material provided on the service; or
(b) in the case of a refusal to give a section 65
or 88 removal notice—by, or with the consent of, the person who was the target
of the material provided on the service; or
(c) in the case of a refusal to give a section 77
removal notice that relates to an intimate image of a person—by, or with the
consent of, that person.
(6) An application may be made to the Administrative
Review Tribunal for a review of a decision of the Commissioner under section 66,
79 or 90 to give a removal notice to a hosting service provider.
(7) An application under subsection (6) may
only be made by:
(a) the hosting service provider; or
(b) if the material that is the subject of the
notice was posted on the service by an end‑user of the service—the end‑user.
(8) An application may be made to the Administrative
Review Tribunal for a review of a decision of the Commissioner to refuse to
give a hosting service provider a section 66, 79 or 90 removal notice that
relates to material hosted by the provider.
(9) An application under subsection (8) may
only be made:
(a) by a person who made a section 30, 32 or
36 complaint about the material; or
(b) in the case of a refusal to give a section 66
or 90 removal notice—by, or with the consent of, the person who was the target
of the material provided on the service; or
(c) in the case of a refusal to give a section 79
removal notice that relates to an intimate image of a person—by, or with the
consent of, that person.
End‑user notice
(10) An application may be made to the Administrative
Review Tribunal for a review of a decision of the Commissioner under section 70
to give an end‑user notice.
Removal notice—end‑user
(10A) An application may be made to the Administrative
Review Tribunal for a review of a decision of the Commissioner under section 78
or 89 to give a removal notice.
Removal notice—online content scheme
(11) An application may be made to the Administrative
Review Tribunal for a review of a decision of the Commissioner under section 109,
110, 114 or 115 to give a removal notice.
Remedial direction
(12) An application may be made to the Administrative
Review Tribunal for a review of a decision of the Commissioner under section 83
to give a remedial direction.
Blocking notice
(13) An application may be made to the Administrative
Review Tribunal for a review of a decision of the Commissioner under section 99
to give a blocking notice.
Remedial notice
(14) An application may be made to the Administrative
Review Tribunal for a review of a decision of the Commissioner under section 119
or 120 to give a remedial notice.
Link deletion notice
(15) An application may be made to the Administrative
Review Tribunal for a review of a decision of the Commissioner under section 124
to give a link deletion notice.
App removal notice
(16) An application may be made to the Administrative
Review Tribunal for a review of a decision of the Commissioner under section 128
to give an app removal notice.
Decisions under section 140
(17) An application may be made to the Administrative
Review Tribunal for a review of a decision of the Commissioner under section 140
to refuse to register an industry code.
(18) An application under subsection (17) may
only be made by the body or association that developed the code.
Decisions under section 143
(19) An application may be made to the Administrative
Review Tribunal for a review of a decision of the Commissioner under section 143
to:
(a) give a direction to a person; or
(b) vary a direction that is applicable to a
person; or
(c) refuse to revoke a direction that is
applicable to a person.
(20) An application under subsection (19) may
only be made by the person concerned.
Decisions under subsection 151(5)
or section 154
(21) An application may be made to the Administrative
Review Tribunal for a review of any of the following decisions made by the
Commissioner:
(a) a decision of a kind referred to in subsection 151(5)
(which deals with administrative decisions under service provider
determinations), where the decision relates to a person;
(b) a decision under section 154 to:
(i) give a direction to a person; or
(ii) vary a direction that is applicable to a
person; or
(iii) refuse to revoke a direction that is
applicable to a person.
(22) An application under subsection (21) may
only be made by the person concerned.
220A
Internal review of decisions
(1) The Commissioner:
(a) must, by notifiable instrument, formulate a
scheme (the internal review scheme) for and in relation to the review by
the Commissioner of decisions of a kind referred to in section 220; and
(b) may, by notifiable instrument, vary the
internal review scheme.
(2) The internal review scheme may empower the
Commissioner to:
(a) on application, review such a decision; and
(b) affirm, vary or revoke the decision concerned.
(3) The internal review scheme may provide that
the Commissioner’s decision on review of a decision has effect as if it had
been made under the provision under which the original decision was made.
(4) Subsections (2) and (3) do not limit subsection (1).
(5) The Commissioner must publish the internal
review scheme on the Commissioner’s website.
221
Protection from civil proceedings
(1) Civil proceedings do not lie against a person in
respect of loss, damage or injury of any kind suffered by another person
because of any of the following acts done in good faith:
(a) the making of a complaint under section 30;
(b) the making of a statement to, or the giving of
a document or information to, the Commissioner in connection with an
investigation under section 31;
(c) the making of a complaint under section 32;
(d) the giving of an objection notice under section 33;
(e) the making of a statement to, or the giving of
a document or information to, the Commissioner in connection with an
investigation under section 34;
(f) the making of a statement to, or the giving of
a document or information to, the Commissioner in connection with a
consideration under section 35;
(g) the making of a complaint under section 36;
(h) the making of a statement to, or the giving of
a document or information to, the Commissioner in connection with an
investigation under section 37;
(i) the making of a complaint under section 38,
39 or 40;
(j) the making of a statement to, or the giving of
a document or information to, the Commissioner in connection with an
investigation under section 42.
(2) Civil proceedings do not lie against a person
in respect of anything done by the person in compliance with:
(a) an end‑user notice; or
(b) a removal notice; or
(c) a remedial notice; or
(d) a link deletion notice; or
(e) an app removal notice; or
(f) a blocking request; or
(g) a blocking notice; or
(h) a notice under subsection 194(2).
None
of the following:
(a) the Commissioner;
(b) a delegate of the Commissioner;
is liable to an action or other
proceeding for damages for, or in relation to, an act or matter in good faith
done or omitted to be done:
(c) in the performance or purported performance of
any function; or
(d) in the exercise or purported exercise of any
power;
conferred on the Commissioner by or under
this Act.
222A
Liability for damages—Information Commissioner
The
Information Commissioner is not liable to an action or other proceeding for
damages for, or in relation to, an act or matter in good faith done or omitted
to be done:
(a) in the performance or purported performance of
any function; or
(b) in the exercise or purported exercise of any
power;
conferred on the Information Commissioner
by or under this Act.
223
Protection from criminal proceedings—Commissioner, Classification Board
etc.
(1) For the purposes of this section, each of the
following is a protected person:
(a) the Commissioner;
(aa) a member of an advisory committee established
under section 183A;
(b) a member of the staff of the ACMA;
(c) an officer or employee whose services are made
available to the ACMA under paragraph 55(1)(a) of the Australian Communications and Media Authority Act 2005;
(d) a person engaged under subsection 185(1);
(e) a consultant engaged under section 187;
(f) a member or temporary member of the
Classification Board;
(g) a member of staff assisting the Classification
Board as mentioned in section 88A of the Classification (Publications, Films and Computer Games) Act 1995;
(h) a consultant engaged to assist in the
performance of the functions of the Classification Board.
(2) Criminal proceedings do not lie against a
protected person for or in relation to:
(a) the collection of material; or
(b) the possession of material; or
(c) the distribution of material; or
(d) the delivery of material; or
(e) the copying of material; or
(f) the doing of any other thing in relation to
material;
in connection with the exercise of a
power, or the performance of a function, conferred on the Commissioner or the
Classification Board by or under this Act.
(3) For the purposes of this section, possession
includes have in custody or control.
224
Referral of matters to law enforcement agencies
(1) If:
(a) in the performance of a function, or the
exercise of a power, conferred on the Commissioner, the Commissioner becomes
aware of particular material provided on a social media service, relevant electronic
service or designated internet service; and
(b) the Commissioner is satisfied that the
material is of a sufficiently serious nature to warrant referral to a law
enforcement agency;
the Commissioner must notify the material
to:
(c) a member of an Australian police force; or
(d) if there is an arrangement between:
(i) the Commissioner; and
(ii) the chief (however described) of an Australian
police force under which the Commissioner is authorised to notify the material
to another person or body;
that
other person or body.
Referral to law enforcement agency
(2) The manner in which material is to be notified
under paragraph (1)(c) to a member of an Australian police force includes
(but is not limited to) a manner ascertained in accordance with an arrangement
between:
(a) the Commissioner; and
(b) the chief (however described) of the police
force concerned.
(3) If a member of an Australian police force is
notified of particular material under this section, the member may notify the
material to a member of another law enforcement agency.
(4) This section does not, by implication, limit
the powers of the Commissioner to refer other matters to a member of an
Australian police force.
225
Deferral of action in order to avoid prejudicing a criminal
investigation
If:
(a) in the performance of a function, or the
exercise of a power, conferred on the Commissioner, the Commissioner becomes
aware of particular material provided on a social media service, relevant
electronic service or designated internet service; and
(b) apart from this section, the Commissioner
would be required to take action under this Act in relation to the material;
and
(c) a member of an Australian police force
satisfies the Commissioner that the taking of that action should be deferred
until the end of a particular period in order to avoid prejudicing a criminal
investigation;
the Commissioner may defer taking that
action until the end of that period.
(1) The Commissioner may make one or more copies
of material for the purposes of:
(a) an investigation under section 31, 34, 37
or 42; or
(b) a consideration under section 35; or
(c) a request under section 160.
(2) The Commissioner does not infringe copyright
if the Commissioner does anything authorised by subsection (1).
227
Compensation for acquisition of property
(1) If the operation of:
(a) this Act; or
(b) a legislative instrument made under this Act;
would result in an acquisition of
property (within the meaning of paragraph 51(xxxi) of the Constitution)
from a person otherwise than on just terms (within the meaning of that
paragraph), the Commonwealth is liable to pay a reasonable amount of
compensation to the person.
(2) If the Commonwealth and the person do not
agree on the amount of the compensation, the person may institute proceedings
in:
(a) the Federal Court; or
(b) the Supreme Court of a State or Territory;
for the recovery from the Commonwealth of
such reasonable amount of compensation as the court determines.
228
Service of notices by electronic means
Paragraphs
9(1)(d) and (2)(d) of the Electronic
Transactions Act 1999 do not apply to a notice under:
(a) this Act; or
(b) the Regulatory
Powers (Standard Provisions) Act 2014, so far as that Act relates to this
Act.
Note: Paragraphs
9(1)(d) and (2)(d) 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.
229
Service of notices on contact person etc.
Scope
(1) This section applies to:
(a) a summons or process in any proceedings under,
or connected with, this Act; or
(b) a summons or process in any proceedings under,
or connected with, the Regulatory Powers
(Standard Provisions) Act 2014, so far as that Act relates to this Act; or
(c) a notice under this Act; or
(d) a notice under the Regulatory Powers (Standard Provisions) Act 2014, so far as that
Act relates to this Act.
Service of summons, process or notice
on contact person
(2) If:
(a) the summons, process or notice, as the case
may be, is required to be served on, or given to:
(i) the provider of a social media service; or
(ii) the provider of a relevant electronic service;
or
(iii) the provider of a designated internet service;
or
(iv) a hosting service provider; or
(v) the provider of an internet search engine
service; or
(vi) the provider of an app distribution service;
or
(vii) an internet service provider; and
(b) there is an individual who is:
(i) an employee or agent of the provider; and
(ii) designated by the provider as the provider’s
contact person for the purposes of this Act; and
(c) the contact details of the contact person have
been notified to the Commissioner;
the summons, process or notice, as the
case may be, is taken to have been served on, or given to, the provider if it
is served on, or given to, the contact person.
Service of summons, process or notice
on agent
(3) If:
(a) the summons, process or notice, as the case
may be, is required to be served on, or given to, a body corporate incorporated
outside Australia; and
(b) the body corporate does not have a registered
office or a principal office in Australia; and
(c) the body corporate has an agent in Australia;
the summons, process or notice, as the
case may be, is taken to have been served on, or given to, the body corporate
if it is served on, or given to, the agent.
Other matters
(4) Subsections (2) and (3) have effect in
addition to section 28A of the Acts
Interpretation Act 1901.
Note: Section 28A
of the Acts Interpretation Act 1901
deals with the service of documents.
230
Instruments under this Act may provide for matters by reference to other
instruments
(1) An instrument under this Act may make
provision in relation to a matter by applying, adopting or incorporating (with
or without modifications) provisions of any Act:
(a) as in force at a particular time; or
(b) as in force from time to time.
(2) An instrument under this Act may make
provision in relation to a matter by applying, adopting or incorporating (with
or without modifications) matter contained in any other instrument or writing:
(a) as in force or existing at a particular time;
or
(b) as in force or existing from time to time;
even if the other instrument or writing
does not yet exist when the instrument under this Act is made.
(3) A reference in subsection (2) to any
other instrument or writing includes a reference to an instrument or writing:
(a) made by any person or body in Australia or
elsewhere (including, for example, the Commonwealth, a State or Territory, an
officer or authority of the Commonwealth or of a State or Territory, or an
overseas entity); and
(b) whether of a legislative, administrative or
other official nature or of any other nature; and
(c) whether or not having any legal force or
effect;
for example:
(d) regulations or rules under an Act; or
(e) a State Act, a law of a Territory, or
regulations or any other instrument made under such an Act or law; or
(f) an international technical standard or
performance indicator; or
(g) a written agreement or arrangement or an
instrument or writing made unilaterally.
(4) Nothing in this section limits the generality
of anything else in it.
(5) Subsections (1) and (2) have effect
despite anything in:
(a) the Acts
Interpretation Act 1901; or
(b) the Legislation
Act 2003.
(6) In this section:
instrument under this Act means:
(a) the legislative rules; or
(b) any other instrument made under this Act; or
(c) an industry code (within the meaning of Division 7
of Part 9).
231
This Act does not limit Schedule 8 to the Broadcasting Services Act 1992
This
Act does not limit the operation of Schedule 8 to the Broadcasting Services Act 1992.
232
This Act does not limit the Telecommunications
Act 1997
This
Act does not limit the operation of the Telecommunications
Act 1997.
233
Implied freedom of political communication
(1) This Act does not apply to the extent (if any)
that it would infringe any constitutional doctrine of implied freedom of
political communication.
(2) Subsection (1) does not limit the
application of section 15A of the Acts
Interpretation Act 1901 to this Act.
234
Concurrent operation of State and Territory laws
It
is the intention of the Parliament that this Act is not to apply to the
exclusion of a law of a State or Territory to the extent to which that law is
capable of operating concurrently with this Act.
(1) A law of a State or Territory, or a rule of
common law or equity, has no effect to the extent to which it:
(a) subjects, or would have the effect (whether
direct or indirect) of subjecting, an Australian hosting service provider to
liability (whether criminal or civil) in respect of hosting particular online
content in a case where the provider was not aware of the nature of the online
content; or
(b) requires, or would have the effect (whether
direct or indirect) of requiring, an Australian hosting service provider to
monitor, make inquiries about, or keep records of, online content hosted by the
provider; or
(c) subjects, or would have the effect (whether
direct or indirect) of subjecting, an internet service provider to liability
(whether criminal or civil) in respect of carrying particular online content in
a case where the service provider was not aware of the nature of the online
content; or
(d) requires, or would have the effect (whether
direct or indirect) of requiring, an internet service provider to monitor, make
inquiries about, or keep records of, online content carried by the provider.
(2) The Minister may, by legislative instrument,
exempt a specified law of a State or Territory, or a specified rule of common
law or equity, from the operation of subsection (1).
Note: For
specification by class, see subsection 13(3) of the Legislation Act 2003.
(3) An exemption under subsection (2) may be
unconditional or subject to such conditions (if any) as are specified in the
exemption.
Declaration by Minister
(4) The Minister may, by legislative instrument,
declare that a specified law of a State or Territory, or a specified rule of
common law or equity, has no effect to the extent to which the law or rule has
a specified effect in relation to an Australian hosting service provider.
Note: For
specification by class, see subsection 13(3) of the Legislation Act 2003.
(5) The Minister may, by legislative instrument,
declare that a specified law of a State or Territory, or a specified rule of
common law or equity, has no effect to the extent to which the law or rule has
a specified effect in relation to an internet service provider.
Note: For
specification by class, see subsection 13(3) of the Legislation Act 2003.
(6) A declaration under subsection (4) or (5)
has effect only to the extent that:
(a) it is authorised by paragraph 51(v) of
the Constitution (either alone or when read together with
paragraph 51(xxxix) of the Constitution); or
(b) both:
(i) it is authorised by section 122 of the
Constitution; and
(ii) it would have been authorised by
paragraph 51(v) of the Constitution (either alone or when read together
with paragraph 51(xxxix) of the Constitution) if section 51 of the
Constitution extended to the Territories.
236
This Act not to affect performance of State or Territory functions
A
power conferred by this Act 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 or the Australian Capital Territory.
237
Revocation or variation of instruments
A
provision of this Act 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.
(1) For the purposes of this Act, a person does
not provide a social media service, age‑restricted social media platform, relevant
electronic service or designated internet service merely because the person
supplies a carriage service that enables material to be accessed or delivered.
(2) For the purposes of this Act, a person does
not provide an app distribution service merely because the person supplies a
carriage service that enables apps to be downloaded.
(3) For the purposes of this Act, a person does
not provide a social media service, age‑restricted social media platform, relevant
electronic service, designated internet service or app distribution service
merely because the person provides a billing service, or a fee collection
service, in relation to a social media service, age‑restricted social media platform,
relevant electronic service, designated internet service or app distribution
service.
239
Extended meaning of use
Unless
the contrary intention appears, a reference in this Act to the use
of a thing is a reference to the use of the thing either:
(a) in isolation; or
(b) in conjunction with one or more other things.
239A
Review of operation of this Act
(1) Within 3 years after the commencement of this
section, the Minister must cause to be conducted an independent review of the
operation of this Act.
(2) The Minister must cause to be prepared a
written report of the review.
(3) The Minister must cause copies of the report
to be tabled in each House of the Parliament within 15 sitting days of that
House after the day on which the report is given to the Minister.
239B
Review of social media minimum age framework
(1) Within 2 years after the day section 63D
takes effect in accordance with section 63E, the Minister must cause to be
conducted an independent review of the operation of Part 4A.
(2) Without limiting subsection (1), the
review must include consideration of:
(a) the adequacy of privacy protections in, and in
relation to, Part 4A; and
(b) any other matters relating to the operation of
Part 4A determined by the Minister.
(3) The Minister must cause to be prepared a
written report of the review.
(4) The Minister must cause copies of the report
to be tabled in each House of the Parliament within 15 sitting days of that
House after the day on which the report is given to the Minister.
(1) The Minister may, by legislative instrument,
make rules (legislative rules) prescribing
matters:
(a) required or permitted by this Act to be prescribed by the legislative rules; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
(2) To avoid doubt, the legislative rules
may not do the following:
(a) create an offence or civil penalty;
(b) provide powers of:
(i) arrest or detention; or
(ii) entry, search or seizure;
(c) impose a tax;
(d) set an amount to be appropriated from the
Consolidated Revenue Fund under an appropriation in this Act;
(e) directly amend the text of this Act.
The endnotes provide information about this compilation and the
compiled law.
The following endnotes are included in every compilation:
Endnote
1—About the endnotes
Endnote
2—Abbreviation key
Endnote
3—Legislation history
Endnote 4—Amendment history
Abbreviation key—Endnote 2
The abbreviation key sets out abbreviations that may be used in the
endnotes.
Legislation history and amendment
history—Endnotes 3 and 4
Amending laws are annotated in the legislation history and amendment
history.
The legislation history in endnote 3 provides information about each
law that has amended (or will amend) the compiled law. The information includes
commencement details for amending laws and details of any application, saving
or transitional provisions that are not included in this compilation.
The amendment history in endnote 4 provides information about
amendments at the provision (generally section or equivalent) level. It also
includes information about any provision of the compiled law that has been
repealed in accordance with a provision of the law.
Editorial changes
The Legislation Act 2003
authorises First Parliamentary Counsel to make editorial and presentational
changes to a compiled law in preparing a compilation of the law for
registration. The changes must not change the effect of the law. Editorial
changes take effect from the compilation registration date.
If the compilation includes editorial changes, the endnotes include
a brief outline of the changes in general terms. Full details of any changes
can be obtained from the Office of Parliamentary Counsel.
Misdescribed
amendments
A misdescribed amendment is an amendment that does not accurately
describe how an amendment is to be made. If, despite the misdescription, the
amendment can be given effect as intended, then the misdescribed amendment can
be incorporated through an editorial change made under section 15V of the Legislation Act 2003.
If a misdescribed amendment cannot be given effect as intended, the
amendment is not incorporated and “(md not incorp)” is added to the amendment
history.
|
ad
= added or inserted |
o
= order(s) |
|
am
= amended |
Ord
= Ordinance |
|
amdt
= amendment |
orig
= original |
|
c
= clause(s) |
par
= paragraph(s)/subparagraph(s) |
|
C[x]
= Compilation No. x |
/sub‑subparagraph(s) |
|
Ch
= Chapter(s) |
pres
= present |
|
def
= definition(s) |
prev
= previous |
|
Dict
= Dictionary |
(prev…)
= previously |
|
disallowed
= disallowed by Parliament |
Pt
= Part(s) |
|
Div
= Division(s) |
r
= regulation(s)/rule(s) |
|
ed
= editorial change |
reloc
= relocated |
|
exp
= expires/expired or ceases/ceased to have |
renum
= renumbered |
|
effect |
rep
= repealed |
|
F
= Federal Register of Legislation |
rs
= repealed and substituted |
|
gaz
= gazette |
s
= section(s)/subsection(s) |
|
LA
= Legislation Act 2003 |
Sch
= Schedule(s) |
|
LIA
= Legislative Instruments Act 2003 |
Sdiv
= Subdivision(s) |
|
(md)
= misdescribed amendment can be given |
SLI
= Select Legislative Instrument |
|
effect |
SR
= Statutory Rules |
|
(md
not incorp) = misdescribed amendment |
Sub‑Ch
= Sub‑Chapter(s) |
|
cannot be given effect |
SubPt
= Subpart(s) |
|
mod
= modified/modification |
underlining = whole or part not |
|
No.
= Number(s) |
commenced or to be commenced |
|
Act |
Number and year |
Assent |
Commencement |
Application, saving and
transitional provisions |
|
Online Safety Act 2021 |
76, 2021 |
23 July 2021 |
23 Jan 2022 (s 2(1) item 1) |
|
|
Online Safety (Transitional
Provisions and Consequential Amendments) Act 2021 |
77, 2021 |
23 July 2021 |
Sch 2 (items 110–112): 23 Jan
2022 (s 2(1) item 6) |
— |
|
Administrative Review Tribunal
(Consequential and Transitional Provisions No. 2) Act 2024 |
39, 2024 |
31 May 2024 |
Sch 12 (items 59, 60): 14 Oct
2024 (s 2(1) item 2) |
— |
|
Online
Safety Amendment (Social Media Minimum Age) Act 2024 |
127, 2024 |
10 Dec 2024 |
Sch 1 (items 1–16, 18, 19): 11
Dec 2024 (s 2(1) item 1) |
Sch 1 (items 18, 19) |
|
Provision affected |
How affected |
|
Part 1 |
|
|
s 4......................................................... |
am No 127, 2024 |
|
s 5......................................................... |
am No 127, 2024 |
|
Part 2 |
|
|
s 25....................................................... |
am No 127, 2024 |
|
s 27....................................................... |
am No 127, 2024 |
|
Part 3 |
|
|
Division 5 |
|
|
s 43....................................................... |
ed C1 |
|
Part 4A |
|
|
Part 4A................................................ |
ad No 127, 2024 |
|
Division 1 |
|
|
s 63A.................................................... |
ad No 127, 2024 |
|
s 63B.................................................... |
ad No 127, 2024 |
|
s 63C.................................................... |
ad No 127, 2024 |
|
Division 2 |
|
|
s 63D.................................................... |
ad No 127, 2024 |
|
s 63DA................................................. |
ad No 127, 2024 |
|
s 63DB................................................. |
ad No 127, 2024 |
|
s 63E.................................................... |
ad No 127, 2024 |
|
Division 3 |
|
|
s 63F.................................................... |
ad No 127, 2024 |
|
Division 4 |
|
|
s 63G.................................................... |
ad No 127, 2024 |
|
s 63H................................................... |
ad No 127, 2024 |
|
Division 5 |
|
|
s 63J..................................................... |
ad No 127, 2024 |
|
s 63K.................................................... |
ad No 127, 2024 |
|
Part 9 |
|
|
Division 7 |
|
|
Subdivision C |
|
|
s 143.................................................... |
am No 127, 2024 |
|
Subdivision D |
|
|
s 146.................................................... |
am No 127, 2024 |
|
Part 10 |
|
|
s 162.................................................... |
am No 77, 2021 |
|
s 163.................................................... |
am No 127, 2024 |
|
s 164.................................................... |
am No 77, 2021; No 127, 2024 |
|
s 165.................................................... |
am No 77, 2021; No 127, 2024 |
|
Part 16 |
|
|
s 220.................................................... |
am No 39, 2024 |
|
s 222A................................................. |
ad No 127, 2024 |
|
|
ed C3 |
|
s 238.................................................... |
am No 127, 2024 |
|
s 239B................................................. |
ad No 127, 2024 |
In preparing
this compilation for registration, the following kinds of editorial change(s)
were made under the Legislation Act 2003.
Section 222A
Kind of editorial change
Give effect to
the misdescribed amendment as intended
Details of editorial change
Schedule 1
item 13A of the Online Safety
Amendment (Social Media Minimum Age) Act
2024 provides as follows:
13A
After section 222
222A Liability for damages—Information
Commissioner
The Information Commissioner
is not liable to an action or other proceeding for damages for, or in relation
to, an act or matter in good faith done or omitted to be done:
(a) in the performance or purported performance of any function; or
(b) in the exercise or purported exercise of any power;
conferred
on the Information Commissioner by or under this Act.
The instruction to insert the section
is missing.
This compilation was editorially changed to insert section 222A after section 222 to give effect to the misdescribed amendment as intende
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