On 25 February 2021, the Senate referred the provisions of the Online Safety Bill 2021 (the OS Bill) and the Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021 (the Ancillary Bill) (collectively, the bills) to the Environment and Communications Legislation Committee (the committee) for inquiry and report by 11 March 2021. The reporting date was subsequently extended to 12 March 2021.
According to the Explanatory Memoranda (EMs), the bills seek to create a new online safety framework for Australians: 'a modern, fit for purpose regulatory framework that builds on the strengths of the existing legislative scheme for online safety'.
Conduct of the inquiry
In accordance with its usual practice, the committee advertised the inquiry on its website and wrote on 25 February 2021 to relevant organisations inviting submissions by 2 March 2021.
The committee received 135 submissions, which are listed at Appendix 1 and are available on the committee's website at www.aph.gov.au/senate_ec.
The committee also held a public hearing on 5 March 2021 in Canberra and via videoconference. A list of witnesses who gave evidence at the hearing is at Appendix 2.
The committee thanks all of the individuals and organisations who contributed to the inquiry, particularly given the inquiry's short timeframe.
Scope and structure of the report
This report comprises two chapters:
Chapter 1 provides background information relating to the bills, outlines the bills' purposes and key proposals, and notes consideration of the bills undertaken by other parliamentary committees.
Chapter 2 examines the primary issues raised by stakeholders in submissions and in evidence, and sets out the committee's findings and recommendation.
Note on references
In this report, references to the Committee Hansard are to the proof (that is, uncorrected) transcript. Page numbers may vary between the proof and the official transcript.
Background and context to the bills
In June 2018, then Minister for Communications (Minister), Senator the Hon Mitch Fifield, announced an independent review of Australia's online safety legislation. This review examined the Enhancing Online Safety Act 2015 (EOS Act) (which sets out the powers, functions and governance arrangements for the Office of the eSafety Commissioner) and Schedules 5 and 7 of the Broadcasting Services Act 1992 (which provides for the Online Content Scheme).
A key finding and recommendation from the review was that, although current regulatory arrangements for online safety have been effective, major reform is needed to strengthen the regulatory regime and align it with community expectations, including replacing the existing framework with a single Online Safety Act.
In May 2019, in the lead up to the Federal Election, the Liberal Party of Australia announced its 'Keeping Australians Safe Online' policy. As part of this policy, the Minister committed to the introduction of a new Online Safety Act 'to ensure our laws keep pace with tech change and to make sure safety is embedded in the online world'.
Attorney-General the Hon Christian Porter MP further noted that, under the Keeping Australians Safe Online policy, penalties for online abuse and harassment would be strengthened in line with community expectations that online crime should be treated as seriously as offline crime.
In December 2019, the Department of Infrastructure, Transport, Regional Development and Communications (the department) commenced public consultations on a range of proposed online safety reforms. In response, the department received 85 submissions, which informed an exposure draft of the OS Bill.
In December 2020, the department released and conducted public consultations on an exposure draft of the OS Bill. Over a seven-week period, 376 submissions were received (including 18 from organisations and 333 from individuals) before the bills were finalised for introduction into the Parliament.
The OS Bill comprises Parts 1-16, covering matters such as the establishment of the eSafety Commissioner (Commissioner), enforcement, information gathering and investigative powers, and disclosure of information by the Commissioner.
The Ancillary Bill comprises Schedules 1-3 and would primarily implement transitional and consequential changes arising from the enactments contained in the OS Bill.
OS Bill key provisions
In the time available, this report focuses on Parts 3-6 and 8-9 of the OS Bill which provide for the key proposals that were developed throughout the reform process:
retention of the provisions in the EOS Act that have proven effective in protecting Australians from online harms
Part 3 would establish a complaints system for 'cyber-bullying material targeted at an Australian child', the non-consensual sharing of intimate images, 'cyber-abuse material targeted at an Australian adult', and the online content scheme;
articulation of a set of core basic online safety expectations
Part 4 would provide for the Minister to determine basic online safety expectations (BOSE) for social media services, relevant electronic services and designated internet services;
expansion of the cyber-bullying scheme for children to capture harms that occur on services other than social media
Part 5 would enable the Commissioner to give notices requiring the removal of cyber-bullying material targeted at an Australian child from a service, a post or a host site;
creation of a new complaints-based, removal notice scheme for cyber-abuse targeted at an adult
Part 6 would enable the Commissioner to give notices requiring the removal of cyber-abuse material targeted at an Australian adult from a service, a post or a host site;
creation of a specific and targeted power for the Commissioner to request or require internet service providers (ISPs) to block access to material that promotes, incites, instructs in or depicts 'abhorrent violent conduct', for time-limited periods (Part 8)
creation of a modern online content scheme, to replace the current Online Content Scheme in Schedules 5 and 7 of the Broadcasting Services Act 1992
Part 9 would enable the Commissioner to give notices requiring providers to remove, cease hosting, cease providing a link to certain material, or cease enabling end‑users to download an app that facilitates the posting of certain material;
the new online content scheme will clearly include providers of app distribution services and internet search engine services;
reduction of the timeframe for service providers to respond to a removal notice from the Commissioner from 48 to 24 hours.
Ancillary Bill key provisions
In addition to the key provisions proposed in the OS Bill, the Ancillary Bill proposes amendments in respect of the Criminal Code Act 1995 (Criminal Code), as foreshadowed in the Keeping Australians Safe Online policy.
The Ancillary Bill would:
repeal the existing maximum penalty of three years' imprisonment for the offence of using a carriage service to menace, harass or cause offence, and substitute a maximum penalty of five years' imprisonment; and
repeal the maximum penalty of five years for the offence in the existing standard aggravated offence involving private sexual material—using a carriage service to menace, harass or cause offence, and substitute with a maximum penalty of six years.
Reports of other parliamentary committees
When examining a bill, the committee takes into account any relevant comments published by the Senate Standing Committee for the Scrutiny of Bills (Scrutiny Committee) and the Parliamentary Joint Committee on Human Rights (Human Rights Committee).
The Scrutiny Committee assesses legislative proposals against a set of accountability standards that focus on the effect of proposed legislation on individual rights, liberties and obligations, the rule of law and on parliamentary scrutiny. As at the time of writing, the Scrutiny Committee had not examined the bills.
The Human Rights Committee examines bills and legislative instruments for compatibility with human rights, and reports its findings to both Houses of Parliament. As at the time of writing, the Human Rights Committee had not examined the bills.