BILLS DIGEST NO. 79, 2014–15              3 March 2015

Enhancing Online Safety for Children (Consequential Amendments) Bill 2014

Genevieve Butler
Law and Bills Digest Section 

Date introduced: 3 December 2014

House:  House of Representatives

Portfolio: Communications

Commencement:  Refer to page two of this Bills Digest.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website.

Commencement

Sections 1 to 3 commence on Royal Assent.

Schedule 1, Part 1; Schedule 2, Part 1; and Schedule 3: At the same time as section 3 of the Enhancing Online Safety for Children Act 2014 commences. The Enhancing Online Safety for Children Bill 2014 is currently before Parliament.[1] If enacted, it will commence on the earlier of proclamation, or six months after Royal Assent.

Schedule 1, Part 2: Immediately after the commencement of Part 1 of Schedule 1.

Schedule 2, Part 2: Immediately after the commencement of Part 3 of Schedule 1 to the Telecommunications Legislation Amendment (Deregulation) Act 2014. However, the provisions do not commence at all if Part 3 of Schedule 1 to the Telecommunications Legislation Amendment (Deregulation) Act 2014 commences before the commencement of the provisions in Schedule 2, Part 1. The Telecommunications Legislation Amendment (Deregulation) Bill 2014 is currently before Parliament.[2] If enacted, it will commence on 1 July 2015.

Purpose of the Bill

The purpose of the Enhancing Online Safety for Children (Consequential Amendments) Bill 2014 (the Consequential Amendments Bill) is give the new Children’s e-Safety Commissioner, created by the Enhancing Online Safety for Children Bill 2014 (Online Safety Bill), information gathering powers similar to those held by the Australian Communications and Media Authority (ACMA) under Part 13 of the Broadcasting Services Act 1992 (BSA).[3]  The Bill also transfers administrative responsibility for the Online Content Scheme from the ACMA to the Commissioner, and makes other consequential amendments.

Structure of the Bill

The Consequential Amendments Bill deals with consequential matters arising from the enactment of the Online Safety Bill.

Schedule 1 to the Consequential Amendments Bill contains amendments to the BSA to:

•       give the Commissioner information gathering powers similar to those currently possessed by the ACMA under Part 13 of the BSA

•       change references in Schedules 5 and 7 to the BSA from the ACMA to the Commissioner to reflect the transfer of administrative responsibility for the Online Content Scheme in those Schedules to the Commissioner and

•       make minor consequential amendments to provisions in those Schedules.

Schedule 2 to the Consequential Amendments Bill contains consequential amendments to other Acts arising from the establishment of the Commissioner.

Schedule 3 to the Consequential Amendments Bill contains transitional provisions relating to the transfer of administrative responsibility for the Online Content Scheme in Schedules 5 and 7 of the BSA to the Commissioner.

Background

For background to this Bill, please see the Bills Digest for the Enhancing Online Safety for Children Bill 2014.[4]

Committee consideration

Senate Environment and Communications Legislation Committee

The Bill has been referred to the Senate Environment and Communications Legislation Committee for inquiry and report by 3 March 2015. Details of the inquiry are on the Committee’s webpage.[5]

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills made no comment on this Bill.[6]

Policy position of non-government parties/independents

At the time of writing, the Australian Greens, the Palmer United Party and Independents had not made any comments on this Bill that were available in the public domain.

Australian Labor Party (ALP)

The ALP supports the Bill, along with the Enhancing Online Safety for Children Bill 2014.[7]

Financial implications

The Commissioner will be established as an independent statutory office within the ACMA. Funding for the Commissioner’s activities will be allocated to the Children’s Online Safety Special Account (the Special Account) established under Part 8 of the Enhancing Online Safety for Children Bill 2014.

The funding to be allocated will be $6.7 million in 2014–15 and approximately $11 million per annum thereafter.[8]

The Commissioner’s approval will be required for any expenditure from the Special Account.

The Bill will not otherwise have a significant impact on Commonwealth expenditure or revenue.[9]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[10]

The Government advises that the Consequential Amendments Bill ‘deals with a range of facilitative technical amendments to legislation, and does not engage any human rights’.[11]

The Parliamentary Joint Committee on Human Rights concluded that the Bill does not raise human rights concerns.[12]

Key issues and provisions

Amendments to the Broadcasting Services Act 1992

Schedule 1 amends the BSA to transfer relevant functions and powers for the administration of the Online Content Scheme in Schedules 5 and 7 to the BSA from the ACMA to the Commissioner, and to provide powers for the Commissioner relating to its functions under the Online Safety Bill.[13] The Online Content Scheme is designed to address community concerns about offensive and illegal material on the Internet and mobile phones.[14] It is currently known as the ACMA Hotline for reporting offensive or illegal online content. Under the present scheme, the ACMA can investigate and take action on complaints about online content. It also encourages the development and registration of codes of practice, and undertakes a range of supporting activities including international liaison.[15]

Part 1 of Schedule 1 addresses general amendments to the BSA. Items 2 to 15 amend Part 13 of the BSA, which provides the ACMA with information gathering powers. The changes reflect the transfer of the power to conduct specific investigations relating to the Online Content Scheme from the ACMA to the Commissioner. They also apply the powers in Part 13 of the BSA to investigations conducted by the Commissioner under the Online Safety Bill.[16]

Items 16 to 23 amend Schedule 5 to the BSA, which sets up a system for regulating certain aspects of the internet industry. Items 24 to 35 amend Schedule 7 to the BSA, which deals with complaints about prohibited content. The amendments in items 16 to 35 reflect the transfer of the administration of these Schedules from the ACMA to the Commissioner.

Item 3 inserts new section 169A at the end of Division 1 of Part 13 of the BSA, to provide that an ‘investigation’ by the Commissioner is limited to an investigation conducted under clause 19 of the Online Safety Bill, clause 27 of Schedule 5 to the BSA, or clause 44 of Schedule 7 to the BSA.[17] 

Section 173 of the BSA empowers the ACMA to give a written notice summoning a person to give evidence regarding an investigation. Items 4 to 6 amend section 173, adding new subsection 173(2) to provide equivalent powers to the Commissioner in respect of investigations conducted under the Online Safety Bill or Schedules 5 or 7 to the BSA.

Section 174 of the BSA empowers a delegate of the ACMA to require a person summoned to give evidence on affirmation or under oath. Items 7 and 8 amend section 174. Item 8 adds new subsections 174(4) to (6) to provide equivalent powers in respect of investigations conducted by the Commissioner or a delegate of the Commissioner.

Section 177 of the BSA empowers the ACMA to require a person to make relevant documents available to the ACMA, which may copy them. Items 11 to 13 amend section 177. Item 13 adds new subsection 177(2) to provide equivalent powers in respect of investigations conducted by the Commissioner or a delegate of the Commissioner.

Subsection 200(3) of the BSA provides that persons who appear at a hearing, give evidence or produce documents at an investigation or hearing conducted by the ACMA have the same protections afforded to a witness in a proceeding in the High Court. Item 15 adds new subsection 200(4) to give the same protections to persons who give evidence or produce documents to an investigation conducted by the Commissioner.

Schedules 5 and 7 to the BSA contain a variety of references to powers and responsibilities of the ACMA, which are to be transferred to the Commissioner. Items 16 to 35 amend various provisions in these Schedules to replace references to the ACMA with references to the Commissioner, or make other similar amendments.[18]

Part 2 of Schedule 1 makes amendments to change certain references in the BSA to the ACMA into references to the Commissioner. Items 36 to 38 amend Schedules 5 and 7 to the BSA to replace the remaining references to the ACMA with references to the Commissioner. However, in Schedule 7, the references to the ACMA are retained in paragraphs (a) and (b) of the definition of licensed broadcasting service in clause 2, as this is defined as a broadcasting service provided in accordance with a licence allocated by the ACMA or a class licence determined by the ACMA under the BSA. The references to the ACMA are also retained in subparagraph 9A(1)(a)(ii), which refers to equipment capable of receiving one or more subscription television broadcasting services provided in accordance with a licence allocated by the ACMA under the BSA, and in paragraphs 112(1)(c) and (e), which relate to protection from criminal proceedings. ACMA remains the relevant authority for these provisions.

Amendments of other Acts

Schedule 2 amends other Acts in consequence of the transfer of functions and powers for the administration of the Online Content Scheme in Schedules 5 and 7 to the BSA from the ACMA to the Commissioner. The other Acts are the Australian Communications and Media Authority Act 2005 (ACMA Act), the Criminal Code Act 1995, the Freedom of Information Act 1982 and the Telecommunications Act 1997.

Australian Communications and Media Authority Act 2005

Part 1 of Schedule 2 amends the ACMA Act to:

•       reflect the office of the Children’s e-Safety Commissioner as an independent statutory office residing within the ACMA

•       limit the ACMA’s functions in relation to internet content to reflect the Commissioner’s responsibility for those matters that fall within the Commissioner’s functions (items 4-5) and

•       require the ACMA to include in the ACMA’s annual report, details of the ACMA’s expenditure on the Commissioner’s functions (item 7).[19]

Sections 51 and 52 of the ACMA Act allow ACMA to delegate the exercise of certain powers. This is subject to limitations in section 53 which lists powers that cannot be delegated. Item 6 repeals paragraphs 53(2)(n), (o), (p) and (pa). These prohibit delegation of powers under Schedules 5 and 7 to the BSA relating to powers to formulate specific schemes or to determine specific standards or determinations. These amendments are consequential to the functions and powers under those Schedules being transferred from the ACMA to the Commissioner.[20]

Section 59D of the ACMA Act empowers an ACMA official, where authorised in writing by the ACMA Chair, to disclose certain information to specific authorities specified in subsection 59D(1). Item 8 amends subsection 59D(1), adding new paragraph 59D(1)(la) to allow disclosure of information to the Commissioner.

Criminal Code Act 1995

Items 9 to 14 replace references in the Criminal Code to the ACMA with references to the Commissioner, consequential to the transfer of the functions and powers under Schedules 5 and 7 to the BSA from the ACMA to the Commissioner.[21]

Offences for crimes relating to child pornography, such as possession, production or distribution of child pornography (Division 273) or using a carriage service for child pornography material (Subdivision D of Division 474) are contained in the Criminal Code. [22] Paragraphs 273.9(5)(a) and 474.21(4)(a) provide defences for persons who might otherwise be criminally liable for certain crimes under the above Divisions while engaging with child pornography materials in good-faith for the sole purpose of assisting the ACMA to detect prohibited content or potential prohibited content for the purposes of Schedules 5 and 7 to the BSA. These provisions are amended by items 9 to 14 of Schedule 2 to the Bill to ensure that these defences apply to people assisting the Commissioner to detect prohibited content.

Freedom of Information Act 1982

Subsection 7(2) of the FOI Act exempts certain documents held by certain persons, bodies and entities from the application of the FOI Act.[23] Division 1 of Part II of Schedule 2 of the FOI Act lists the exempted bodies’ documents. Item 15 amends this division to add an exemption for the Children’s e-Safety Commissioner. This exempts the Commissioner from releasing to the public particular content-service documents or internet-service documents relating to the performance of a function, or the exercise of a power under Schedules 5 and 7 of the BSA.

Telecommunications Act 1997

Part 13 of the Telecommunications Act provides a framework for the protection of information relating to communications.[24] Section 284 of the Telecommunications Act covers assistance to the ACMA, the Australian Competition and Consumer Commission (ACCC), the Telecommunications Industry Ombudsman and Telecommunications Universal Service Management Agency (TUSMA). It provides that sections 276 and 277 (which prevent the disclosure of information by people who work, or have worked, in the telecommunications industry) do not prohibit a disclosure by a person of information or a document if the disclosure is made to a member of the staff of the ACMA, the Telecommunications Industry Ombudsman, the ACCC or the TUSMA, and the information or document may assist those bodies to carry out their functions or powers.

Items 16 and 17 amend section 284. Item 17 adds new subsection 284(1A) to provide an additional exception to sections 276 and 277. This additional exception allows specific persons to disclose information or a document to the Commissioner or an ACMA staff member whose duties relate to the performance of the Commissioner’s functions, if the disclosure will assist the Commissioner in carrying out his or her functions or powers.

Section 299 provides that if information or a document is disclosed to a person under section 284 of the Telecommunications Act, the person must not disclose or use the information or document except for the purpose of, or in connection with, carrying out the functions and powers of the ACMA, the ACCC, the Telecommunications Industry Ombudsman or TUSMA.

Items 18 to 20 amend section 299. Item 19 inserts new subsection 299(1A) to provide a similar secondary disclosure/use provision in relation to information or a document disclosed to the Commissioner under new subsection 284(1A) (see items 16 and 17, above). Items 18 and 20 update the section 299 heading and note to include a reference to the Commissioner.

Part 34 of the Telecommunications Act deals with special provisions relating to functions and powers of the ACMA and the Attorney-General regarding telecommunications. Within Part 34, section 581 deals with the ACMA’s power to give written directions to carriers or service providers in connection with performing or exercising any of the ACMA’s telecommunications functions or powers.

Items 23 and 24 amend section 581, adding new subsections 581(2A), (2B) and (4A) to also allow the Commissioner to give written directions to carriers or service providers in connection with his or her functions or powers. Carriers or service providers must comply with such directions. Items 21 and 22 make consequential amendments to the heading and simplified outline of Part 34 to reflect these new powers.

Transitional provisions

Schedule 3 contains transitional provisions relating to the amendments made by the Consequential Amendments Bill and the enactment of the Enhancing Online Safety for Children Bill.

Item 2 provides that anything done by, or in relation to, the ACMA before the transition time under, or for the purposes of, Schedules 5 or 7 to the BSA, has effect as if it were done by, or in relation to, the Commissioner. This is to ensure continuity after the transfer of responsibility for the administration of those schedules from the ACMA to the Commissioner.[25]

Item 3 substitutes the Commissioner for the ACMA as a party to any proceedings under, or in connection with, Schedule 5 or 7 to the BSA which were pending in any court or tribunal immediately before the commencement of Schedule 3 to the Bill and to which the ACMA was a party.

Item 4 applies to any records or documents the ACMA holds immediately before the commencement of Schedule 3 to the Bill, which concern Schedule 5 or 7 to the BSA. If the records or documents wholly concern Schedule 5 or 7 they are to be transferred to the Commissioner after the transition time (subitem 4(2)), while if the records or documents partly concern Schedule 5 or 7, they are to be made available to the Commissioner at the Commissioner’s request (subitem 4(3)).

Under item 8, the Minister can make rules, by legislative instrument, regarding transitional matters arising out of the enactment of the Enhancing Online Safety for Children Bill and the amendments made by the Consequential Amendments Bill.

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.

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[1].              Parliament of Australia, ‘Enhancing Online Safety for Children Bill 2014 homepage’, Australian Parliament website, accessed 2 March 2015.

[2].              Parliament of Australia, ‘Telecommunications Legislation Amendment (Deregulation) Bill 2014 homepage’, Australian Parliament website, accessed 2 March 2015.

[3].              Broadcasting Services Act 1992, accessed 27 February 2015.

[4].              G Butler, Enhancing Online Safety for Children Bill 2014, Bills digest, 78, 2014–15, Parliamentary Library, Canberra, 2015, accessed 2 March 2015.

[5].              Senate Standing Committee on Environment and Communications, Enhancing Online Safety for Children Bill 2014 [Provisions] and the Enhancing Online Safety for Children (Consequential Amendments) Bill 2014 [Provisions], inquiry webpage, The Senate, accessed 27 February 2015.

[6].              Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 1 of 2015, The Senate, Canberra, 11 February 2015, p. 12, accessed 27 February 2015.

[7].              C O’Neil, ‘Second reading speech: Enhancing Online Safety for Children Bill 2014, Enhancing Online Safety for Children (Consequential Amendments) Bill 2014’, House of Representatives, Debates, 12 February 2015, p. 32, accessed 27 February 2015.

[8].              Explanatory Memorandum, Enhancing Online Safety for Children Bill 2014, Enhancing Online Safety for Children (Consequential Amendments) Bill 2014, p. 6, accessed 27 February 2015.

[9].              Ibid.

[10].              The Statement of Compatibility with Human Rights can be found at page 7 of the Explanatory Memorandum to the Bill.

[11].              Explanatory Memorandum, op. cit., p. 9.

[12].              Parliamentary Joint Committee on Human Rights, Eighteenth report of the 44th Parliament, The Senate, 10 February 2015, p. 1, accessed 2 March 2015.

[13].              Ibid., p. 100.

[14].              Australian Communications and Media Authority (ACMA), Regulating Online Content, ACMA website, accessed 2 March 2015.

[15].              Ibid.

[16].              Explanatory Memorandum, op. cit., p. 100

[17].              Clause 19 of the Online Safety Bill allows the Commissioner to investigate complaints about cyber-bullying material targeted at an Australian child. Clause 27 of Schedule 5 to the BSA allows an investigation to be conducted as to whether an internet service provider has contravened an industry code or an online provider rule. Clause 44 of Schedule 7 to the BSA permits investigation of potentially prohibited content.

[18].              Ibid., p. 102.

[19].              Ibid., pp. 102–103; Australian Communications and Media Authority Act 2005, accessed 2 March 2015.

[20].              Ibid., p. 104.

[21].              Ibid. Criminal Code Act 1995, accessed 2 March 2015.

[22].              Ibid.

[23].              Freedom of Information Act 1982, accessed 2 March 2015.

[24].              Telecommunications Act 1997, accessed 2 March 2015.

[25].              Explanatory Memorandum, op. cit., p. 107.