Commonwealth of Australia Bills Commonwealth of Australia Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
1998-99
The Parliament of
the
Commonwealth of
Australia
THE
SENATE
Presented and read a first
time
Broadcasting
Services Amendment (Online Services) Bill
1999
No. ,
1999
(Communications, Information Technology and the
Arts)
A Bill for an Act to amend the
Broadcasting Services Act 1992, and for other
purposes
ISBN: 0642 393079
Contents
A Bill for an Act to amend the Broadcasting Services
Act 1992, and for other purposes
The Parliament of Australia enacts:
This Act may be cited as the Broadcasting Services Amendment (Online
Services) Act 1999.
This Act commences on the day on which it receives the Royal
Assent.
Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
1 Title
After “broadcasting services”, insert “and
online services”.
2 At the end of section 3
Add:
; and (k) to provide a means for addressing complaints about certain
Internet content; and
(l) to restrict access to certain Internet content that is likely to cause
offence to a reasonable adult; and
(m) to protect children from exposure to Internet content that is
unsuitable for children.
(2) In this section:
Internet content has the same meaning as in Schedule
5.
3 Subsection 4(1)
After “broadcasting services” (wherever occurring), insert
“and Internet services”.
4 At the end of section 4
Add:
(3) The Parliament also intends that Internet content hosted in Australia,
and Internet carriage services supplied to end-users in Australia, be regulated
in a manner that, in the opinion of the ABA:
(a) enables public interest considerations to be addressed in a way that
does not impose unnecessary financial and administrative burdens on Internet
content hosts and Internet service providers; and
(b) will readily accommodate technological change; and
(c) encourages:
(i) the development of Internet technologies and their application;
and
(ii) the provision of services made practicable by those technologies to
the Australian community.
(4) In this section:
Internet carriage service has the same meaning as in Schedule
5.
Internet content has the same meaning as in Schedule
5.
Internet content host has the same meaning as in Schedule
5.
Internet service provider has the same meaning as in Schedule
5.
5 Paragraph 5(1)(a)
After “broadcasting industry”, insert “and the Internet
industry”.
6 At the end of section 5
Add:
(3) This section does not, by implication, limit the functions and powers
of:
(a) the Australian Communications Authority; or
(b) the Australian Competition and Consumer Commission; or
(c) any other body or person who has regulatory responsibilities in
relation to the Internet industry.
7 After section 216A
Insert:
Schedule 5 has effect.
8 Paragraph 18(2)(j) of Schedule
3
After “notice”, insert “(other than a notice under
Schedule 5)”.
9 At the end of subclause 18(2) of Schedule
3
Add:
; or (m) formulate, vary or revoke a scheme under clause 47 of Schedule 5;
or
(n) determine, vary or revoke an industry standard under Schedule 5;
or
(o) determine, vary or revoke an online provider determination under
Schedule 5.
10 At the end of the Act
Add:
Note: See section 216B.
The following is a simplified outline of this Schedule:
• This Schedule sets up a system for regulating certain aspects of
the Internet industry.
• A person may complain to the ABA about prohibited
content or potential prohibited content on the Internet,
and the ABA must investigate the complaint.
• Internet content hosted in Australia is prohibited
content if:
(a) the content has been classified RC (Refused Classification) or X by
the Classification Board; or
(b) the content has been classified R by the Classification Board and
access to the content is not subject to a restricted access system.
• Internet content hosted outside Australia is prohibited
content if the Internet content has been classified RC (Refused
Classification) or X by the Classification Board.
• Internet content is potential prohibited content if
the content has not been classified by the Classification Board, but if it were
to be classified, there is a substantial likelihood that the content would be
prohibited content.
• If the ABA is satisfied that Internet content hosted in Australia
is potential prohibited content, and is likely to be classified RC or X, the ABA
must:
(a) request the Classification Board to classify the content;
and
(b) give the relevant Internet content host an interim take-down
notice directing the host not to host the content pending the
classification of the content.
• If the ABA is satisfied that Internet content hosted in Australia
is potential prohibited content, and is likely to be classified R, the ABA must
request the Classification Board to classify the content.
• If the ABA is satisfied that Internet content hosted in Australia
is prohibited content, the ABA must give the relevant Internet content host a
final take-down notice directing the host not to host the
prohibited content.
• If the ABA is satisfied that Internet content hosted outside
Australia is prohibited content or potential prohibited content, the ABA
must:
(a) if the ABA considers that the content is of a sufficiently serious
nature to warrant referral to a law enforcement agency—notify the content
to an Australian police force; and
(b) notify the content to Internet service providers so that the providers
can deal with the content in accordance with procedures specified in an industry
code or industry standard (for example, procedures for the filtering, by
technical means, of such content).
• Bodies and associations that represent sections of the Internet
industry may develop industry codes.
• The ABA has a reserve power to make an industry standard if there
are no industry codes or if an industry code is deficient.
• The ABA may make online provider determinations regulating Internet
service providers and Internet content hosts.
In this Schedule, unless the contrary intention appears:
AAT means the Administrative Appeals Tribunal.
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 Internet content, means
a system under which:
(a) persons seeking access to the Internet content have been issued with a
Personal Identification Number that provides a means of limiting access by other
persons to the Internet content; or
(b) persons seeking access to the Internet content have been provided with
some other means of limiting access by other persons to the Internet
content.
adult means an individual who is 18 or older.
Australia, when used in a geographical sense, includes all
the external Territories.
Australian police force means:
(a) the Australian Federal Police; or
(b) the police force of a State or Territory.
child means an individual who is not an adult.
civil proceeding includes a civil action.
Classification Board means the Classification Board
established by the Classification (Publications, Films and Computer Games)
Act 1995.
Classification Review Board means the Classification Review
Board established by the Classification (Publications, Films and Computer
Games) Act 1995.
classified means classified under this Schedule.
computer game has the same meaning as in the
Classification (Publications, Films and Computer Games) Act
1995.
data storage device means any article or material (for
example, a disk) from which information is capable of being reproduced, with or
without the aid of any other article or device.
designated notification scheme means a scheme:
(a) in the nature of a scheme for substituted service; and
(b) under which the ABA is taken, for the purposes of this Schedule, to
have notified each Internet service provider of a matter or thing.
Note: For example, the ABA may make matters or things
available on the Internet (with or without security measures).
film has the same meaning as in the Classification
(Publications, Films and Computer Games) Act 1995.
Note: Film is defined broadly in that Act, and
includes any form of recording from which a visual image can be
produced.
final take-down notice means a notice under subclause 28(1)
or paragraph 28(4)(b) of this Schedule.
immediate circle has the same meaning as in the
Telecommunications Act 1997.
information means information:
(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 (animated or otherwise);
or
(e) whether in any other form; or
(f) whether in any combination of forms.
interim take-down notice means a notice under subparagraph
28(2)(a)(i) of this Schedule.
Internet carriage service means a listed
carriage service that enables end-users to access the Internet.
Internet content means information that:
(a) is kept on a data storage device; and
(b) is accessed, or available for access, using an Internet carriage
service;
but does not include information that is transmitted in the form of a
broadcasting service.
Internet content host means a person who hosts Internet
content in Australia, or who proposes to host Internet content in
Australia.
Internet service provider has the meaning given by clause
6.
listed carriage service has the same meaning as in the
Telecommunications Act 1997.
online provider rule has the meaning given by clause
75.
point-to-multipoint service has the same meaning as in the
Telecommunications Act 1997.
potential
prohibited content has the meaning given by clause 9.
prohibited content has the meaning given by clause
8.
restricted
access system has the meaning given by clause 3.
standard access-prevention notice means a notice under
paragraph 37(1)(c) of this Schedule.
special access-prevention notice means a notice under clause
44.
special
take-down notice means a notice under clause 34.
(1) The ABA may, by written instrument, declare that a specified
access-control system is a restricted access system in relation to
Internet content for the purposes of this Schedule. A declaration under this
subclause has effect accordingly.
Note: For specification by class, see subsection 46(2) of
the Acts Interpretation Act 1901.
(2) In making an instrument under subclause (1), the ABA must have regard
to:
(a) the objective of protecting children from exposure to Internet content
that is unsuitable for children; and
(b) such other matters (if any) as the ABA considers relevant.
(3) A copy of an instrument under subclause (1) is to be laid before each
House of the Parliament within 15 sitting days of that House after the day on
which the instrument was made.
For the purposes of this Schedule, in determining whether Internet
content consists of the entire unmodified contents of a film, disregard any
differences between:
(a) the technique used to embody sounds and/or visual images in the film;
and
(b) the technique used to embody the sounds and/or visual images in a form
in which they can be accessed on the Internet.
Unless the contrary intention appears, a reference in this Schedule 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.
Basic definition
(1) For the purposes of this Schedule, 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 written 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
Schedule. A declaration under this subclause has effect accordingly.
Note: For specification by class, see subsection 46(2) of
the Acts Interpretation Act 1901.
(3) An instrument under subclause (2) is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act 1901.
(1) This clause sets out the circumstances in which an Internet carriage
service is taken, for the purposes of subclause 6(1), to be supplied to the
public.
(2) If:
(a) an Internet carriage service is used for the carriage of information
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 content available for
access on the Internet, and an individual obtains access to the content using an
Internet carriage service, the company and the individual are end-users in
relation to the carriage of the content 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.
(4) If:
(a) an Internet carriage service is used to supply designated content
services (other than 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.
(5) For the purposes of this clause, a designated content
service is a content service of a kind specified in a written
determination made by the Minister.
(6) A determination under subclause (5) is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
(7) In this clause:
content service has the same meaning as in the
Telecommunications Act 1997.
Internet content hosted in Australia
(1) For the purposes of this Schedule, Internet content hosted in
Australia is prohibited content if:
(a) the Internet content has been classified RC or X by the Classification
Board; or
(b) both:
(i) the Internet content has been classified R by the Classification
Board; and
(ii) access to the Internet content is not subject to a restricted access
system.
Internet content hosted outside Australia
(2) For the purposes of this Schedule, Internet content hosted outside
Australia is prohibited content if the Internet content has been
classified RC or X by the Classification Board.
Note: Classified means classified under this
Schedule—see clause 2.
(1) For the purposes of this Schedule, Internet content is
potential prohibited content if:
(a) the Internet content has not been classified by the Classification
Board; and
(b) if the Internet content were to be classified by the Classification
Board, there is a substantial likelihood that the Internet content would be
prohibited content.
(2) In determining whether particular Internet content is potential
prohibited content, it is to be assumed that this Schedule authorised the
Classification Board to classify the Internet content.
Deemed classification
(1) If:
(a) Internet content consists of:
(i) the entire unmodified contents of a film; or
(ii) a computer game; and
(b) the film or computer game has been classified under the
Classification (Publications, Films and Computer Games) Act
1995;
the Internet content is taken to have been classified by the Classification
Board under this Schedule in the same way as the film or the computer game, as
the case may be, was classified under that Act.
Actual classification
(2) If:
(a) Internet content consists of:
(i) the entire unmodified contents of a film; or
(ii) a computer game; and
(b) the film or computer game has not been classified under the
Classification (Publications, Films and Computer Games) Act
1995;
the Classification Board is to classify the Internet content under this
Schedule in a corresponding way to the way in which the film or computer game,
as the case may be, would be classified under the Classification
(Publications, Films and Computer Games) Act 1995.
If Internet content does not consist of:
(a) the entire unmodified contents of a film; or
(b) a computer game;
the Classification Board is to classify the Internet content under this
Schedule in a corresponding way to the way in which a film would be classified
under the Classification (Publications, Films and Computer Games) Act
1995.
(1) If Internet content has been classified by the Classification Board
(otherwise than because of subclause 10(1)):
(a) the Classification Board must not reclassify the content within the
2-year period beginning on the day on which the classification occurred;
and
(b) after that 2-year period, the Classification Board may reclassify the
content.
(2) The Classification Board may act under paragraph (1)(b):
(a) if required to do so by the Minister or the ABA; or
(b) on the Classification Board’s own initiative.
(3) If the Minister or the ABA requires the Classification Board to act
under paragraph (1)(b), the Classification Board must do so.
(4) If Internet content is reclassified by the Classification Board, the
Classification Board must notify the ABA accordingly.
(1) If:
(a) Internet content has been classified by the Classification Board
(otherwise than because of subclause 10(1)); and
(b) the Classification Board intends to reclassify the content;
then:
(c) the Director of the Classification Board must give notice of that
intention, inviting submissions about the matter; and
(d) the Director of the Classification Board must cause the contents of
the notice to be published, in such manner as the Director decides, at least 30
days before the Classification Board proposes to consider the matter;
and
(e) the Director of the Classification Board must give a copy of the
notice to the Minister and to the ABA at least 30 days before the Classification
Board proposes to consider the matter.
(2) A notice under paragraph (1)(c) must specify the day on which the
Board proposes to consider the matter.
(3) The matters that the Classification Board is to take into account in
reclassifying the Internet content include issues raised in submissions made to
the Classification Board about the matter.
If Internet content has been classified by the Classification Board
(otherwise than because of subclause 10(1)), any of the following persons may
apply to the Classification Review Board for a review of the
classification:
(a) the Minister;
(b) the ABA;
(c) an Internet service provider who supplies an Internet carriage service
that enables end-users to access the content;
(d) an Internet content host who hosts the content in Australia, or
proposes to host the content in Australia;
(e) a person aggrieved by the classification.
(1) An application for review of a classification must be:
(a) in writing; and
(b) made in a form approved in writing by the Convenor of the
Classification Review Board; and
(c) signed by or on behalf of the applicant; and
(d) except for an application made by the Minister—accompanied by
the fee ascertained under subclause (4).
(2) An application by the Minister or the ABA for review of a
classification may be made at any time.
(3) Any other application for review of a classification must be
made:
(a) within 30 days after the applicant became aware of the classification;
or
(b) within such longer period as the Classification Review Board
allows.
(4) Regulations prescribing fees for the purposes of paragraph 43(1)(d) of
the Classification (Publications, Films and Computer Games) Act 1995
apply, subject to such modifications (if any) as are specified in regulations
made for the purposes of this subclause, to a review of a classification under
this Schedule in a corresponding way to the way in which they apply to a review
of a classification under that Act.
(5) A fee under subclause (1) must not be such as to amount to
taxation.
(6) In this clause:
modifications includes additions, omissions and
substitutions.
(1) For the purposes of reviewing a classification of Internet content,
the Classification Review Board:
(a) may exercise all the powers and discretions that are conferred on the
Classification Board by this Schedule; and
(b) must make a decision in writing:
(i) confirming the classification; or
(ii) reclassifying the content.
(2) If the Classification Review Board reclassifies the Internet content,
this Schedule (other than this Subdivision) has effect as if the content had
been reclassified by the Classification Board.
If:
(a) Internet content consists of:
(i) the entire unmodified contents of a film; or
(ii) a computer game; and
(b) the film or computer game has been classified under the
Classification (Publications, Films and Computer Games) Act 1995;
and
(c) the decision to classify the film or computer game is reviewed by the
Classification Review Board under that Act; and
(d) as a result of the review, the Classification Review Board classifies
the film or computer game under that Act;
this Schedule has effect as if the film or computer game had been
classified by the Classification Board under this Schedule in the same way as
the film or computer game was classified under that Act by the Classification
Review Board.
(1) The ABA is liable to pay fees in respect of the classification under
this Schedule of Internet content.
(2) The amount of a fee payable under subclause (1) is ascertained under
whichever of subclause (3), (4) or (5) is applicable.
Films
(3) If Internet content consists of the entire unmodified contents of a
film, regulations prescribing fees for the purposes of paragraph 14(1)(d) of the
Classification (Publications, Films and Computer Games) Act 1995 apply,
subject to such modifications (if any) as are specified in regulations made for
the purposes of this subclause, in relation to the classification under this
Schedule of the content in a corresponding way to the way in which they apply to
the classification under that Act of the film.
Computer games
(4) If Internet content consists of a computer game, regulations
prescribing fees for the purposes of paragraph 17(1)(d) of the Classification
(Publications, Films and Computer Games) Act 1995 apply, subject to such
modifications (if any) as are specified in regulations made for the purposes of
this subclause, in relation to the classification under this Schedule of the
content in a corresponding way to the way in which they apply to the
classification under that Act of the computer game.
Content other than films or computer games
(5) If Internet content does not consist of:
(a) the entire unmodified contents of a film; or
(b) a computer game;
regulations prescribing fees for the purposes of paragraph 14(1)(d) of the
Classification (Publications, Films and Computer Games) Act 1995 apply,
subject to such modifications (if any) as are specified in regulations made for
the purposes of this subclause, in relation to the classification under this
Schedule of the content in a corresponding way to the way in which they apply to
the classification under that Act of a film.
Fees must not be such as to amount to taxation
(6) A fee under subclause (1) must not be such as to amount to
taxation.
Definitions
(7) In this clause:
classification under this Schedule means classification under
this Schedule that is sought by the ABA (otherwise than by way of an application
under clause 14).
modifications includes additions, omissions and
substitutions.
(1) Section 57 of the Classification (Publications, Films and Computer
Games) Act 1995 applies to the consideration by the Classification Board of
a matter arising under this Schedule in a corresponding way to the way in which
it applies to the consideration of an application under that Act.
(2) To
avoid doubt, sections 10, 19, 20, 22, 25, 26, 27 and 28 of the Classification
(Publications, Films and Computer Games) Act 1995 do not apply to a
classification under this Schedule.
Complaints relating to Internet service providers
(1) If a person has reason to believe that an Internet service provider is
supplying an Internet carriage service that enables end-users to access
prohibited content or potential prohibited content, the person may make a
complaint to the ABA about the matter.
Complaints relating to Internet content hosts
(2) If a person has reason to believe that an Internet content host
is:
(a) hosting prohibited content in Australia; or
(b) hosting potential prohibited content in Australia;
the person may make a complaint to the ABA about the matter.
Content of complaint
(3) A complaint under subclause (1) or (2) about particular Internet
content must:
(a) identify the Internet content; and
(b) set out how to access the Internet content (for example: set out a
URL, a password, or the name of a newsgroup); and
(c) if the complainant knows the country or countries in which the
Internet content is hosted—set out the name of that country or those
countries; and
(d) set out the complainant’s reasons for believing that the
Internet content is prohibited content or potential prohibited content;
and
(e) set out such other information (if any) as the ABA requires.
(4) The rule in paragraph (3)(b) does not apply to a complaint to the
extent (if any) to which finding out how to access the Internet content would
cause the complainant to contravene a law of a State or Territory.
(5) A person is not entitled to make a complaint under subclause (1) or
(2) about something that occurs before 1 January 2000.
If a person has reason to believe that an Internet service provider, or
an Internet content host:
(a) has contravened a code registered under Part 5 of this Schedule that
is applicable to the provider or host; or
(b) has contravened an online provider rule that is applicable to the
provider or host;
the person may make a complaint to the ABA about the matter.
(1) A complaint under this Division is to be in writing.
(2) However, the ABA may permit complaints to be given, in accordance with
specified software requirements, by way of a specified kind of electronic
transmission.
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.
(1) The ABA must investigate a complaint under Division 1.
(2) However, the ABA need not investigate the complaint if:
(a) the ABA is satisfied that the complaint is:
(i) frivolous; or
(ii) vexatious; or
(iii) not made in good faith; or
(b) the ABA has reason to believe that the complaint was made for the
purpose, or for purposes that include the purpose, of frustrating or undermining
the effective administration of this Schedule.
(3) The ABA must notify the complainant of the results of such an
investigation.
(4) The
ABA may terminate such an investigation if it is of the opinion that it does not
have sufficient information to conclude the investigation.
(1) The ABA may investigate any of the following matters if the ABA thinks
that it is desirable to do so:
(a) whether an Internet service provider is supplying an Internet carriage
service that enables end-users to access prohibited content or potential
prohibited content;
(b) whether an Internet content host is hosting prohibited content, or
potential prohibited content, in Australia;
(c) whether an Internet service provider, or an Internet content
host:
(i) has contravened a code registered under Part 5 of this Schedule that
is applicable to the provider or host; or
(ii) has contravened an online provider rule that is applicable to the
provider or host.
(2) Paragraphs (1)(a) and (b) do not authorise the ABA to investigate
something that occurs before 1 January 2000.
(1) An investigation under this Division is to be conducted as the ABA
thinks fit.
(2) The ABA may, for the purposes of an investigation, obtain information
from such persons, and make such inquiries, as it thinks fit.
(3) This clause has effect subject to Part 13 of this Act (which confers
certain investigative powers on the ABA).
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 Division 1;
(b) the making of a statement to, or the giving of a document or
information to, the ABA in connection with an investigation under this
Division.
Prohibited content
(1) If, in the course of an investigation under Division 2, the ABA is
satisfied that Internet content hosted in Australia is prohibited content, the
ABA must give the relevant Internet content host a written notice (a final
take-down notice) directing the Internet content host not to host the
prohibited content.
Potential prohibited content
(2) The following provisions have effect if, in the course of an
investigation under Division 2, the ABA is satisfied that Internet content
hosted in Australia is potential prohibited content:
(a) if the ABA is satisfied that, if the Internet content were to be
classified by the Classification Board, there is a substantial likelihood that
the Internet content would be classified RC or X—the ABA must:
(i) give the relevant Internet content host a written notice (an
interim take-down notice) directing the Internet content host not
to host the Internet content until the ABA notifies the host under subclause (4)
of the Classification Board’s classification of the Internet content;
and
(ii) request the Classification Board to classify the Internet
content;
(b) if the ABA is satisfied that, if the Internet content were to be
classified by the Classification Board, there is a substantial likelihood that
the Internet content would be classified R— the ABA must request the
Classification Board to classify the Internet content.
(3) If the Classification Board receives a request under paragraph (2)(a)
or (b) to classify particular Internet content, the Classification Board
must:
(a) classify the content; and
(b) inform the ABA, in writing, of its classification.
(4) If the ABA is informed under paragraph (3)(b) of the classification of
particular Internet content, the ABA must:
(a) give the relevant Internet content host a written notice setting out
the classification; and
(b) in a case where the effect of the classification is that the Internet
content is prohibited content—give the Internet content host a written
notice (a final take-down notice) directing the host not to host
the prohibited content.
(5) If the ABA requests the Classification Board to classify particular
Internet content:
(a) the ABA must give the Classification Board:
(i) sufficient information about the content to enable the Classification
Board to access the content; or
(ii) a copy of the content; and
(b) the ABA must give the Classification Board sufficient information
about the content to enable the Classification Board to classify the content;
and
(c) the ABA may, at the request of the Classification Board or on its own
initiative, give the Classification Board additional information about the
content if the ABA is of the opinion that the additional information would be
likely to facilitate the classification of the content.
(6) If the ABA makes a decision under paragraph (2)(b) to request the
Classification Board to classify Internet content, the ABA must give the
relevant Internet content host a written notice setting out the
decision.
(1) If:
(a) in the course of an investigation under Division 2, the ABA is
satisfied that Internet content hosted in Australia is prohibited content or
potential prohibited content; and
(b) apart from this subclause, the ABA would be required to take action
under subclause 28(1) or (2) in relation to the content; and
(c) a member of an Australian police force satisfies the ABA 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 ABA may defer taking that action until the end of that
period.
(2) Subclause (1) has effect despite anything in clause 28.
(1) If:
(a) a final take-down notice relating to particular Internet content is
applicable to a particular Internet content host; and
(b) the Internet content has been classified R by the Classification
Board; and
(c) at the time when the final take-down notice was issued, access to the
Internet content was not subject to a restricted access system; and
(d) the Internet content host satisfies the ABA that:
(i) at a later time when the final take-down notice was in force, a
restricted access system was implemented in relation to the Internet content;
and
(ii) as a result of that implementation, the content ceases to be
prohibited content;
the ABA must revoke the final take-down notice.
(2) If a final take-down notice is revoked under this clause, the ABA must
give the Internet content host concerned a written notice stating that the final
take-down notice has been revoked.
(1) If:
(a) an interim take-down notice relating to particular Internet content is
applicable to a particular Internet content host; and
(b) before the Classification Board classifies the Internet content, the
Internet content host:
(i) ceases to host the Internet content; and
(ii) gives the ABA a written undertaking not to host the Internet
content;
the ABA may:
(c) accept the undertaking; and
(d) revoke the interim take-down notice; and
(e) by written notice given to the Classification Board, determine that
the Classification Board is not required to comply with subclause 28(3) in
relation to the classification of the Internet content.
(2) If an interim take-down notice is revoked under this clause, the ABA
must give the Internet content host concerned a written notice stating that the
interim take-down notice has been revoked.
(1) If:
(a) Internet content has been classified by the Classification Board
(otherwise than because of subclause 10(1)); and
(b) a final take-down notice relating to the Internet content is
applicable to a particular Internet content host; and
(c) the Classification Board reclassifies the Internet content;
and
(d) as a result of the reclassification, the content ceases to be
prohibited content;
the ABA must revoke the final take-down notice.
(2) If a final take-down notice is revoked under this clause, the ABA must
give the Internet content host concerned a written notice stating that the final
take-down notice has been revoked.
(1) If:
(a) Internet content consists of:
(i) the entire unmodified contents of a film; or
(ii) a computer game; and
(b) the Classification Board reclassifies the film or computer game under
the Classification (Publications, Films and Computer Games) Act 1995;
and
(c) a final take-down notice relating to the Internet content is
applicable to a particular Internet content host; and
(d) as a result of the reclassification, the Internet content ceases to be
prohibited content;
the ABA must revoke the final take-down notice.
(2) If a final take-down notice is revoked under this clause, the ABA must
give the Internet content host concerned a written notice stating that the final
take-down notice has been revoked.
If:
(a) an interim take-down notice or a final take-down notice relating to
particular Internet content is applicable to a particular Internet content host;
and
(b) the ABA is satisfied that the Internet content host is hosting in
Australia, or is proposing to host in Australia, Internet content (the
similar Internet content) that is substantially similar to the
Internet content identified in the interim take-down notice or the final
take-down notice, as the case may be; and
(c) the ABA is satisfied that the similar Internet content is prohibited
content or potential prohibited content;
the ABA may give the Internet content host a written notice (a
special take-down notice) directing the host not to host the
similar Internet content at any time when the interim take-down notice or final
take-down notice, as the case may be, is in force.
Interim take-down notice
(1) An Internet content host must comply with an interim take-down notice
that applies to the host as soon as practicable, and in any event within 24
hours, after the notice was given to the host.
Final take-down notice
(2) An Internet content host must comply with a final take-down notice
that applies to the host as soon as practicable, and in any event within 24
hours, after the notice was given to the host.
Special take-down notice
(3) An Internet content host must comply with a special take-down notice
that applies to the host as soon as practicable, and in any event within 24
hours, after the notice was given to the host.
Undertaking
(4) An Internet content host must comply with an undertaking given by the
host and accepted under clause 31.
Note: For enforcement, see Part 6 of this
Schedule.
Internet content may be identified in a notice under this
Division:
(a) by setting out the content; or
(b) by describing the content; or
(c) in any other way.
(1) If, in the course of an investigation under Division 2, the ABA is
satisfied that Internet content hosted outside Australia is prohibited content
or potential prohibited content, the ABA must:
(a) if the ABA considers the content is of a sufficiently serious nature
to warrant referral to a law enforcement agency (whether in or outside
Australia)—notify the content to:
(i) a member of an Australian police force; or
(ii) if there is an arrangement between the ABA and the chief (however
described) of an Australian police force under which the ABA is authorised to
notify the content to a another person or body (whether in or outside
Australia)—that other person or body; and
(b) if a code registered, or standard determined, under Part 5 of this
Schedule deals with the matters referred to in subclause 56(2)—notify the
content to Internet service providers under the designated notification scheme
set out in the code or standard, as the case may be; and
(c) if paragraph (b) does not apply—give each Internet service
provider known to the ABA a written notice (a standard access-prevention
notice) directing the provider to take all reasonable steps to prevent
end-users from accessing the content.
Note: The ABA may be taken to have given a notice under
paragraph (c)—see clause 47.
(2) For the purposes of paragraph (1)(c), in determining whether
particular steps are reasonable, regard must be had to the matters set out in
subsection 4(3).
(3) Subclause (2) does not, by implication, limit the matters to which
regard must be had.
Referral to law enforcement agency
(4) The manner in which Internet content may be notified under paragraph
(1)(a) to a member of an Australian police force includes (but is not limited
to) a manner ascertained in accordance with an arrangement between the ABA and
the chief (however described) of the police force concerned.
(5) If a member of an Australian police force is notified of particular
Internet content under this clause, the member may notify the content to a
member of another law enforcement agency (whether in or outside
Australia).
(6) This clause does not, by implication, limit the ABA’s powers to
refer other matters to a member of an Australian police force.
(1) If:
(a) in the course of an investigation under Division 2, the ABA is
satisfied that Internet content hosted outside Australia is prohibited content
or potential prohibited content; and
(b) apart from this subclause, the ABA would be required to take action
under subclause 37(1) in relation to the content; and
(c) a member of an Australian police force satisfies the ABA 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 ABA may defer taking that action until the end of that
period.
(2) Subclause (1) has effect despite anything in clause 37.
(1) If:
(a) Internet content has been classified by the Classification Board
(otherwise than because of subclause 10(1)); and
(b) the Internet content has been notified to Internet service providers
as mentioned in paragraph 37(1)(b) of this Schedule; and
(c) the Classification Board reclassifies the Internet content;
and
(d) as a result of the reclassification, the Internet content ceases to be
prohibited content;
the notification of the Internet content is taken to have been
withdrawn.
(2) If:
(a) a notification of Internet content is withdrawn under subclause (1);
and
(b) a code registered, or standard determined, under Part 5 of this
Schedule deals with the matters referred to in subclause 56(2);
the ABA must notify the withdrawal to Internet service providers under the
designated notification scheme set out in the code or standard, as the case may
be.
(1) If:
(a) Internet content consists of:
(i) the entire unmodified contents of a film; or
(ii) a computer game; and
(b) the Classification Board reclassifies the film or computer game under
the Classification (Publications, Films and Computer Games) Act 1995;
and
(c) the Internet content has been notified to Internet service providers
as mentioned in paragraph 37(1)(b) of this Schedule; and
(d) as a result of the reclassification, the Internet content ceases to be
prohibited content;
the notification of the Internet content is taken to have been
withdrawn.
(2) If:
(a) a notification of Internet content is withdrawn under subclause (1);
and
(b) a code registered, or standard determined, under Part 5 of this
Schedule deals with the matters referred to in subclause 56(2);
the ABA must notify the withdrawal to Internet service providers under the
designated notification scheme set out in the code or standard, as the case may
be.
(1) If:
(a) Internet content has been classified by the Classification Board
(otherwise than because of subclause 10(1)); and
(b) a standard access-prevention notice relating to the Internet content
is applicable to a particular Internet service provider; and
(c) the Classification Board reclassifies the Internet content;
and
(d) as a result of the reclassification, the content ceases to be
prohibited content;
the ABA is taken to have revoked the standard access-prevention
notice.
(2) If a standard access-prevention notice is revoked under this clause,
the ABA must give the Internet service provider concerned a written notice
stating that the standard access-prevention notice has been revoked.
Note: The
ABA may be taken to have given a notice under subclause (2)—see clause
47.
(1) If:
(a) Internet content consists of:
(i) the entire unmodified contents of a film; or
(ii) a computer game; and
(b) the Classification Board reclassifies the film or computer game under
the Classification (Publications, Films and Computer Games) Act 1995;
and
(c) a standard access-prevention notice relating to the Internet content
is applicable to a particular Internet service provider; and
(d) as a result of the reclassification, the Internet content ceases to be
prohibited content;
the ABA is taken to have revoked the standard access-prevention
notice.
(2) If a standard access-prevention notice is revoked under this clause,
the ABA must give the Internet service provider concerned a written notice
stating that the standard access-prevention notice has been revoked.
Note: The
ABA may be taken to have given a notice under subclause (2)—see clause
47.
(1) If:
(a) particular Internet content has been notified to Internet service
providers as mentioned in paragraph 37(1)(b) of this Schedule; and
(b) the notification has not been withdrawn; and
(c) the ABA is satisfied that Internet content (the similar Internet
content) that is substantially similar to the first-mentioned Internet
content is being hosted outside Australia; and
(d) the ABA is satisfied that the similar Internet content is prohibited
content or potential prohibited content; and
(e) a code registered, or standard determined, under Part 5 of this
Schedule deals with the matters referred to in subclause 56(2);
the ABA must notify the similar Internet content to Internet service
providers under the designated notification scheme set out in the code or
standard, as the case may be.
(2) If:
(a) particular Internet content is notified to Internet service providers
as mentioned in paragraph 37(1)(b) of this Schedule; and
(b) as a result of the application of subclause (1) to that content, the
ABA notifies similar Internet content to Internet service providers in
accordance with subclause (1); and
(c) the notification of the first-mentioned content is
withdrawn;
the notification of the similar Internet content is taken to have been
withdrawn.
(3) If:
(a) a notification of Internet content is withdrawn under subclause (2);
and
(b) a code registered, or standard determined, under Part 5 of this
Schedule deals with the matters referred to in subclause 56(2);
the ABA must notify the withdrawal to Internet service providers under the
designated notification scheme set out in the code or standard, as the case may
be.
(1) If:
(a) a standard access-prevention notice relating to particular Internet
content is applicable to a particular Internet service provider; and
(b) the ABA is satisfied that the Internet service provider is supplying
an Internet carriage service that enables end-users to access Internet content
(the similar Internet content) that is substantially similar to
the Internet content identified in the standard-access prevention notice;
and
(c) the ABA is satisfied that the similar Internet content is prohibited
content or potential prohibited content;
the ABA may give the provider a written notice (special
access-prevention notice) directing the provider to take all reasonable
steps to prevent end-users from accessing the similar Internet content at any
time when the standard access-prevention notice is in force.
Note: The ABA may be taken to have given a notice under this
clause—see clause 47.
(2) For the purposes of subclause (1), in determining whether particular
steps are reasonable, regard must be had to the matters set out in subsection
4(3).
(3) Subclause (2) does not, by implication, limit the matters to which
regard must be had.
Standard access-prevention notice
(1) An Internet service provider must comply with a standard
access-prevention notice that applies to the provider as soon as practicable,
and in any event within 24 hours, after the notice was given to the
provider.
Special access-prevention notice
(2) An Internet service provider must comply with a special
access-prevention notice that applies to the provider as soon as practicable,
and in any event within 24 hours, after the notice was given to the
provider.
Note: For enforcement, see Part 6 of this
Schedule.
Internet content may be notified in accordance with this Division
by:
(a) setting out the content; or
(b) describing the content; or
(c) in any other way.
(1) The ABA may, by written instrument, formulate a scheme:
(a) in the nature of a scheme for substituted service; and
(b) under which the ABA is taken, for the purposes of this Schedule, to
have done any or all of the following:
(i) given each Internet service provider a standard access-prevention
notice under paragraph 37(1)(c) of this Schedule;
(ii) in a case where a standard-access prevention notice is revoked under
clause 41 or 42—given each Internet service provider a notice of the
revocation under whichever of subclause 41(2) or 42(2) is applicable;
(iii) given each Internet service provider a special access-prevention
notice under clause 44.
Note: For example, the ABA may make notices available on the
Internet (with or without security measures).
(2) Paragraph 37(1)(c) of this Schedule has effect, in relation to a
scheme under subclause (1), as if the reference in that paragraph to each
Internet service provider known to the ABA were a reference to each Internet
service provider.
(3) An instrument under subclause (1) is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act 1901.
The following is a simplified outline of this Part.
• Bodies and associations that represent sections of the Internet
industry may develop industry codes.
• Industry codes may be registered by the ABA.
• Compliance with an industry code is voluntary unless the ABA
directs a particular participant in the Internet industry to comply with the
code.
• The ABA has a reserve power to make an industry standard if there
are no industry codes or if an industry code is deficient.
• Compliance with industry standards is mandatory.
For the purposes of this Part, an industry code is a code
developed under this Part (whether or not in response to a request under this
Part).
For the purposes of this Part, an industry standard is a
standard determined under this Part.
For the purposes of this Part, an Internet activity is an
activity that consists of:
(a) supplying an Internet carriage service; or
(b) hosting Internet content in Australia.
(1) For the purposes of this Part, sections of the Internet
industry are to be ascertained in accordance with this clause.
(2) For the purposes of this Part, each of the following groups is a
section of the Internet industry:
(a) Internet service providers;
(b) Internet content hosts.
For the purposes of this Part, if a person is a member of a group that
constitutes a section of the Internet industry, the person is a
participant in that section of the Internet industry.
(1) The Minister may, by written instrument, declare that a specified body
or association is the designated body for the purposes of this
Part. The declaration has effect accordingly.
(2) An instrument under subclause (1) is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act 1901.
(1) The Parliament intends that bodies or associations that the ABA is
satisfied represent the Internet content host section of the Internet industry
should develop a single code (industry code) that is to apply to
participants in that section of the industry in relation to the Internet
activities of the participants.
(2) The Parliament intends that bodies or associations that the ABA is
satisfied represent the Internet service provider section of the Internet
industry should develop no more than 2 codes (industry codes) that
are to apply to participants in that section of the industry in relation to the
Internet activities of the participants.
(3) The Parliament intends that, for the Internet service provider section
of the Internet industry, one of those industry codes should deal exclusively
with the matters set out in subclause 56(2).
(4) The Parliament intends that the ABA should make reasonable efforts to
ensure that, for each section of the Internet industry, either:
(a) an industry code is registered under this Part before 1 January 2000;
or
(b) an industry standard is registered under this Part before 31 March
2000.
Both sections of the Internet industry
(1) The Parliament intends that, for both sections of the Internet
industry, there should be:
(a) an industry code or an industry standard that deals with; or
(b) an industry code and an industry standard that together deal
with;
each of the following matters:
(c) 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;
(d) giving parents and responsible adults information about how to
supervise and control children’s access to Internet content;
(e) procedures to be followed in order to assist parents and responsible
adults to supervise and control children’s access to Internet
content;
(f) procedures to be followed in order to inform producers of Internet
content about their legal responsibilities in relation to that
content;
(g) telling customers about their rights to make complaints under clause
20 or 21;
(h) procedures to be followed in order to assist customers to make
complaints under clause 20 or 21;
(i) action to be taken to assist in the development and implementation of
Internet content labelling technologies;
(j) giving customers information about the availability, use and
appropriate application of Internet content filtering software;
(k) procedures directed towards the achievement of the objective of
ensuring that customers have the option of subscribing to a filtered Internet
carriage service;
(l) procedures directed towards the achievement of the objective of
ensuring that, in the event that a participant in the relevant section of the
Internet industry becomes aware that an Internet content host is hosting
prohibited content in Australia, the host is told about the prohibited
content.
Internet service provider section of the Internet industry
(2) The Parliament intends that, for the Internet service provider section
of the Internet industry, there should be:
(a) an industry code or an industry standard that deals with; or
(b) an industry code and an industry standard that together deal
with;
each of the following matters:
(c) the formulation of a designated notification scheme;
(d) procedures
to be followed by Internet service providers in dealing with Internet content
notified under paragraph 37(1)(b) of this Schedule or clause 43 (for example,
procedures to be followed by a particular class of Internet service providers
for the filtering, by technical means, of such content).
Clause does not limit matters
(3) This clause does not, by implication, limit the matters that may be
dealt with by industry codes and industry standards.
For the purposes of this Part, an industry code or an industry standard
that deals with a particular matter has no effect to the extent (if any) to
which the matter is dealt with by:
(a) a code registered, or a standard determined, under Part 6 of the
Telecommunications Act 1997; or
(b) the Telecommunications Industry Ombudsman scheme (within the meaning
of that Act).
(1) This clause applies if:
(a) the ABA is satisfied that a body or association represents a
particular section of the Internet 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 Internet activities of those participants; and
(c) the body or association gives a copy of the code to the ABA;
and
(d) the ABA 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 ABA is satisfied that, before giving the copy of the code to the
ABA:
(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 ABA is satisfied that, before giving the copy of the code to the
ABA:
(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 ABA is satisfied that the designated body has been consulted about
the development of the code; and
(h) in a case where the code relates to the Internet content host section
of the Internet industry—the ABA is satisfied that the code is consistent
with subclauses 55(1) and 56(1); and
(i) in a case where the code:
(i) relates to the Internet service provider section of the Internet
industry; and
(ii) does not deal with a matter set out in subclause 56(2);
the code is consistent with subclauses 55(2) and 56(1); and
(j) in a case where the code:
(i) relates to the Internet service provider section of the Internet
industry; and
(ii) deals with a matter set out in subclause 56(2);
the code is consistent with subclauses 55(2) and (3) and 56(2).
Note: Designated body is defined by clause
54.
(2) The ABA must register the code by including it in the Register of
industry codes kept under clause 74.
(3) A period specified under subparagraph (1)(e)(i) or (1)(f)(i) must run
for at least 30 days.
(4) If:
(a) an industry code (the new code) is registered under this
Part; and
(b) the new code is expressed to replace another industry code;
the other code ceases to be registered under this Part when the new code is
registered.
(1) If the ABA is satisfied that a body or association represents a
particular section of the Internet industry, the ABA 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
Internet activities of those participants; and
(b) give the ABA a copy of the code within the period specified in the
notice.
(2) The period specified in a notice under subclause (1) must run for at
least 120 days.
(3) The ABA must not make a request under subclause (1) in relation to a
particular section of the Internet industry unless the ABA is satisfied
that:
(a) the development of the code is necessary or convenient in order
to:
(i) provide appropriate community safeguards; or
(ii) otherwise deal with the performance or conduct of participants in
that section of the industry; and
(b) in the absence of the request, it is unlikely that an industry code
would be developed within a reasonable period.
(4) The ABA may vary a notice under subclause (1) by extending the period
specified in the notice.
(5) Subclause (4) does not, by implication, limit the application of
subsection 33(3) of the Acts Interpretation Act 1901.
(6) A notice under subclause (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).
(1) If the ABA is satisfied that a particular section of the Internet
industry is not represented by a body or association, the ABA 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 ABA would be likely to give a notice to
that body or association under subclause 59(1); and
(b) setting out the matter or matters relating to Internet activities that
would be likely to be specified in the subclause 59(1) notice.
(2) The period specified in a notice under subclause (1) must run for at
least 60 days.
(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, clause 58 has effect, in relation to the registration of the
code, as if paragraphs 58(1)(e) and (f) of this Schedule had not been
enacted.
Note: Paragraphs 58(1)(e) and (f) deal with submissions
about draft codes.
(a) a person is a participant in a particular section of the Internet
industry; and
(b) the ABA is satisfied that the person has contravened, or is
contravening, an industry code that:
(i) is registered under this Part; and
(ii) applies to participants in that section of the industry;
the ABA 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 subclause (1).
Note: For enforcement, see Part 6 of this
Schedule.
(1) This clause applies to a person who is a participant in a particular
section of the Internet industry.
(2) The ABA may issue a formal warning if the person contravenes an
industry code registered under this Part.
(1) This clause applies if:
(a) the ABA has made a request under subclause 59(1) in relation to the
development of a code that is to:
(i) apply to participants in a particular section of the Internet
industry; and
(ii) deal with one or more matters relating to the Internet activities of
those participants; and
(b) any of the following conditions is satisfied:
(i) the request is not complied with;
(ii) 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;
(iii) the request is complied with, but the ABA subsequently refuses to
register the code; and
(c) the ABA is satisfied that it is necessary or convenient for the ABA to
determine a standard in order to:
(i) provide appropriate community safeguards in relation to that matter or
those matters; or
(ii) otherwise regulate adequately participants in that section of the
industry in relation to that matter or those matters.
(2) The ABA may, by written instrument, determine a standard that applies
to participants in that section of the industry and deals with that matter or
those matters. A standard under this subclause is to be known as an
industry standard.
(3) Before determining an industry standard under this clause, the ABA
must consult the body or association to whom the request mentioned in paragraph
(1)(a) was made.
(4) A standard under subclause (2) is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act 1901.
(5) The
Minister may give the ABA a written direction as to the exercise of its powers
under this clause.
(1) This clause applies if:
(a) the ABA is satisfied that a particular section of the Internet
industry is not represented by a body or association; and
(b) the ABA has published a notice under subclause 60(1) relating to that
section of the industry; and
(c) that notice:
(i) states that, if such a body or association were to come into existence
within a particular period, the ABA would be likely to give a notice to that
body or association under subclause 59(1); and
(ii) sets out one or more matters relating to the Internet activities of
the participants in that section of the industry; and
(d) no such body or association comes into existence within that period;
and
(e) the ABA is satisfied that it is necessary or convenient for the ABA to
determine a standard in order to:
(i) provide appropriate community safeguards in relation to that matter or
those matters; or
(ii) otherwise regulate adequately participants in that section of the
industry in relation to that matter or those matters.
(2) The ABA may, by written instrument, determine a standard that applies
to participants in that section of the industry and deals with that matter or
those matters. A standard under this subclause is to be known as an
industry standard.
(3) A standard under subclause (2) is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act 1901.
(4) The
Minister may give the ABA a written direction as to the exercise of its powers
under this clause.
(1) This clause applies if:
(a) an industry code that:
(i) applies to participants in a particular section of the Internet
industry; and
(ii) deals with one or more matters relating to the Internet activities of
those participants;
has been registered under this Part for at least 180 days; and
(b) the ABA is satisfied that the code is totally deficient (as defined by
subclause (7)); and
(c) the ABA 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; and
(d) that period ends and the ABA is satisfied that it is necessary or
convenient for the ABA to determine a standard that applies to participants in
that section of the industry and deals with that matter or those
matters.
(2) The period specified in a notice under paragraph (1)(c) must run for
at least 30 days.
(3) The ABA may, by written instrument, determine a standard that applies
to participants in that section of the industry and deals with that matter or
those matters. A standard under this subclause is to be known as an
industry standard.
(4) If the ABA is satisfied that a body or association represents that
section of the industry, the ABA must consult the body or association before
determining an industry standard under subclause (3).
(5) A standard under subclause (3) is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act 1901.
(6) The industry code ceases to be registered under this Part on the day
on which the industry standard comes into force.
(7) For the purposes of this clause, an industry code that applies to
participants in a particular section of the Internet industry and deals with one
or more matters relating to the Internet activities of those participants is
totally deficient if, and only if:
(a) the code is not operating to provide appropriate community safeguards
in relation to that matter or those matters; or
(b) the code is not otherwise operating to regulate adequately
participants in that section of the industry in relation to that matter or those
matters.
(8) The
Minister may give the ABA a written direction as to the exercise of its powers
under this clause.
(1) This clause applies if:
(a) an industry code that:
(i) applies to participants in a particular section of the Internet
industry; and
(ii) deals with 2 or more matters relating to the Internet activities of
those participants;
has been registered under this Part for at least 180 days; and
(b) clause 66 does not apply to the code; and
(c) the ABA is satisfied that the code is deficient (as defined by
subclause (7)) to the extent to which the code deals with one or more of those
matters (the deficient matter or deficient matters);
and
(d) the ABA 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; and
(e) that period ends and the ABA is satisfied that it is necessary or
convenient for the ABA to determine a standard that applies to participants in
that section of the industry and deals with the deficient matter or deficient
matters.
(2) The period specified in a notice under paragraph (1)(c) must run for
at least 30 days.
(3) The ABA may, by written instrument, determine a standard that applies
to participants in that section of the industry and deals with the deficient
matter or deficient matters. A standard under this subclause is to be known as
an industry standard.
(4) If the ABA is satisfied that a body or association represents that
section of the industry, the ABA must consult the body or association before
determining an industry standard under subclause (3).
(5) A standard under subclause (3) is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act 1901.
(6) On and after the day on which the industry standard comes into force,
the industry code has no effect to the extent to which it deals with the
deficient matter or deficient matters. However, this subclause does not
affect:
(a) the continuing registration of the remainder of the industry code;
or
(b) any investigation, proceeding or remedy in respect of a contravention
of the industry code or clause 62 that occurred before that day.
(7) For the purposes of this clause, an industry code that applies to
participants in a particular section of the Internet industry and deals with 2
or more matters relating to the Internet activities of those participants is
deficient to the extent to which it deals with a particular one of
those matters if, and only if:
(a) the code is not operating to provide appropriate community safeguards
in relation to that matter; or
(b) the code is not otherwise operating to regulate adequately
participants in that section of the industry in relation to that
matter.
(8) The Minister may give the ABA a written direction as to the exercise
of its powers under this clause.
(a) an industry standard that applies to participants in a particular
section of the Internet industry is registered under this Part; and
(b) a person is a participant in that section of the Internet
industry;
the person must comply with the industry standard.
Note: For
enforcement, see Part 6 of this Schedule.
(1) This clause applies to a person who is a participant in a particular
section of the Internet industry.
(2) The ABA may issue a formal warning if the person contravenes an
industry standard registered under this Part.
(1) The ABA may, by written instrument, vary an industry standard that
applies to participants in a particular section of the Internet industry if it
is satisfied that it is necessary or convenient to do so to:
(a) provide appropriate community safeguards in relation to one or more
matters relating to the Internet activities of those participants; and
(b) otherwise regulate adequately those participants in relation to one or
more matters relating to the Internet activities of those
participants.
(2) An instrument under subclause (1) is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act 1901.
(1) The ABA may, by written instrument, revoke an industry
standard.
(2) If:
(a) an industry code is registered under this Part; and
(b) the code is expressed to replace an industry standard;
the industry standard is revoked when the code is registered.
(3) An instrument under subclause (1) is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act 1901.
(1) Before determining or varying an industry standard, the ABA
must:
(a) cause to be published in a newspaper circulating in each State a
notice:
(i) stating that the ABA has prepared a draft of the industry standard or
variation; and
(ii) stating that free copies of the draft will be made available to
members of the public during normal office hours throughout the period specified
in the notice; and
(iii) specifying the place or places where the copies will be available;
and
(iv) inviting interested persons to give written comments about the draft
to the ABA within the period specified under subparagraph (ii); and
(b) make copies of the draft available in accordance with the
notice.
(2) The period specified under subparagraph (1)(a)(ii) must run for at
least 30 days after the publication of the notice.
(3) Subclause (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 subclause (1), the ABA must have due regard to those comments in
determining or varying the industry standard, as the case may be.
(5) In this clause:
State includes the Northern Territory and the Australian
Capital Territory.
(1) Before determining or varying an industry standard, the ABA must
consult the designated body.
(2) Before revoking an industry standard under subclause 71(1), the ABA
must consult the designated body.
Note: Designated
body is defined by clause 54.
(1) The ABA is to maintain a Register in which the ABA includes:
(a) all industry codes required to be registered under this Part;
and
(b) all industry standards; and
(c) all requests made under clause 59; and
(d) all notices under clause 60; and
(e) all directions under clause 62.
(2) The Register may be maintained by electronic means.
(3) The Register is to be made available for inspection on the
Internet.
For the purposes of this Schedule, each of the following is an
online provider rule:
(a) the rule set out in subclause 35(1);
(b) the rule set out in subclause 35(2);
(c) the rule set out in subclause 35(3);
(d) the rule set out in subclause 35(4);
(e) the rule set out in subclause 45(1);
(f) the rule set out in subclause 45(2);
(g) the rule set out in subclause 62(2);
(h) the rule set out in clause 68;
(i) each of the rules (if any) set out in an online provider determination
in force under clause 76.
(1) The ABA may make a written determination setting out rules that apply
to Internet service providers in relation to the supply of Internet carriage
services.
(2) The ABA may make a written determination setting out rules that apply
to Internet content hosts in relation to the hosting of Internet content in
Australia.
(3) A determination under subclause (1) or (2) is called an online
provider determination.
(4) An online 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.
(5) The ABA must not make an online provider determination if the
determination relates to a matter specified in regulations in force for the
purposes of subsection 99(3) of the Telecommunications Act
1997.
(6) An online provider determination may make provision for or in relation
to a particular matter by empowering the ABA to make decisions of an
administrative character.
(7) An online provider determination is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act 1901.
(1) The Minister may, by written instrument, determine that a specified
Internet service provider, or a specified Internet content host, is exempt from
online provider determinations.
(2) The Minister may, by written instrument, determine that a specified
Internet service provider, or a specified Internet content host, is exempt from
a specified online provider determination.
(3) A determination under this clause may be unconditional or subject to
such conditions (if any) as are specified in the determination.
(4) A determination under this clause has effect accordingly.
(5) A determination under this clause is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act 1901.
A person is guilty of an offence if:
(a) an online provider rule is applicable to the person; and
(b) the person contravenes the rule.
Penalty: 50 penalty units.
Note: Subsection
4B(3) of the Crimes Act 1914 lets a court fine a
body corporate up to 5 times the maximum amount the court could fine a person
under this clause.
(1) This clause applies if an Internet service provider, or an Internet
content host, has contravened, or is contravening, an online provider
rule.
(2) The ABA may give the provider or host a written direction requiring
the provider or host to take specified action directed towards ensuring that the
provider or host 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 an Internet service provider, or an Internet content host, under subclause
(2):
(a) a direction that the provider or host implement effective
administrative systems for monitoring compliance with an online provider
rule;
(b) a direction that the provider or host implement a system designed to
give the provider’s or host’s employees, agents and contractors a
reasonable knowledge and understanding of the requirements of an online provider
rule, in so far as those requirements affect the employees, agents or
contractors concerned.
(4) A
person is guilty of an offence if:
(a) the person is subject to a direction under subclause (2);
and
(b) the person contravenes the direction.
Penalty for contravention of this subclause: 50 penalty units.
Note: Subsection 4B(3) of the Crimes Act 1914 lets a
court fine a body corporate up to 5 times the maximum amount the court could
fine a person under this subclause.
The ABA may issue a formal warning if a person contravenes an online
provider rule.
(1) If the ABA is satisfied that:
(a) a person who is an Internet service provider is supplying an Internet
carriage service otherwise than in accordance with an online provider rule;
or
(b) a person who is an Internet content host is hosting Internet content
in Australia otherwise than in accordance with an online provider
rule;
the ABA may apply to the Federal Court for an order that the person cease
supplying that Internet carriage service or cease hosting that Internet content
in Australia, as the case requires.
(2) If the Federal Court is satisfied, on such an application, that the
person is:
(a) supplying an Internet carriage service otherwise than in accordance
with the online provider rule; or
(b) hosting Internet content in Australia otherwise than in accordance
with the online provider rule;
the Federal Court may order the person to cease supplying that Internet
carriage service or cease hosting that Internet content in Australia, as the
case requires.
A person who contravenes clause 78 or subclause 79(4) is guilty of a
separate offence in respect of each day (including the day of a conviction for
the offence or any later day) during which the contravention
continues.
Body corporate
(1) If, in proceedings for an ancillary offence relating to this Schedule,
it is necessary to establish the state of mind of a body corporate in relation
to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by a director, employee or agent of
the body corporate within the scope of his or her actual or apparent authority;
and
(b) that the director, employee or agent had the state of mind.
(2) Any conduct engaged in on behalf of a body corporate by a director,
employee or agent of the body corporate within the scope of his or her actual or
apparent authority is taken, for the purposes of a prosecution for:
(a) an offence against this Schedule; or
(b) an ancillary offence relating this Schedule;
to have been engaged in also by the body corporate unless the body
corporate establishes that the body corporate took reasonable precautions and
exercised due diligence to avoid the conduct.
Person other than a body corporate
(3) If, in proceedings for an ancillary offence relating to this Schedule,
it is necessary to establish the state of mind of a person other than a body
corporate in relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by an employee or agent of the person
within the scope of his or her actual or apparent authority; and
(b) that the employee or agent had the state of mind.
(4) Any conduct engaged in on behalf of a person other than a body
corporate by an employee or agent of the person within the scope of his or her
actual or apparent authority is taken, for the purposes of a prosecution
for:
(a) an offence against this Schedule; or
(b) an ancillary offence relating this Schedule;
to have been engaged in also by the first-mentioned person unless the
first-mentioned person establishes that the first-mentioned person took
reasonable precautions and exercised due diligence to avoid the
conduct.
(5) If:
(a) a person other than a body corporate is convicted of an offence;
and
(b) the person would not have been convicted of the offence if subclauses
(3) and (4) had not been enacted;
the person is not liable to be punished by imprisonment for that
offence.
State of mind
(6) A reference in subclause (1) or (3) to the state of mind
of a person includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the person;
and
(b) the person's reasons for the intention, opinion, belief or
purpose.
Director
(7) A reference in this clause to a director of a body
corporate includes a reference to a constituent member of a body corporate
incorporated for a public purpose by a law of the Commonwealth, a State or a
Territory.
Engaging in conduct
(8) A reference in this clause to engaging in conduct
includes a reference to failing or refusing to engage in conduct.
Ancillary offence relating to this Schedule
(9) A reference in this clause to an ancillary offence
relating to this Schedule is a reference to an offence created by
section 5, 6, 7 or 7A or subsection 86(1) of the Crimes Act 1914 that
relates to this Schedule.
Internet service provider
(1) Civil proceedings do not lie against an Internet service provider in
respect of anything done by the provider in compliance with:
(a) a code registered under Part 5 of this Schedule; or
(b) a standard determined under Part 5 of this Schedule;
in so far as the code or standard deals with procedures referred to in
paragraph 56(2)(d) of this Schedule.
(2) Civil proceedings do not lie against an Internet service provider in
respect of anything done by the provider in compliance with clause 45.
Internet content host
(3) Civil proceedings do not lie against an Internet content host in
respect of anything done by the host in compliance with clause 35.
(1) For the purposes of this clause, each of the following is a
protected person:
(a) the ABA;
(b) a member or associate member of the ABA;
(c) a member of the staff of the ABA;
(d) a consultant engaged to assist in the performance of the ABA’s
functions;
(e) an officer whose services are made available to the ABA under
subsection 165(3);
(f) a member or temporary member of the Classification Board;
(g) a member of the staff of the Classification Board;
(h) a consultant engaged to assist in the performance of the
Classification Board’s functions;
(i) an officer whose services are made available to the Classification
Board under subsection 54(3) of the Classification (Publications, Films and
Computer Games) Act 1995;
(j) a member of the Classification Review Board.
(2) Criminal proceedings do not lie against a protected person for or in
relation to:
(a) the collection of information or material; or
(b) the possession of information or material; or
(c) the distribution of information or material; or
(d) the delivery of information or material; or
(e) the copying of information or material; or
(f) the doing of any other thing in relation to information or
material;
in connection with the exercise of a power, or the performance of a
function, conferred on the ABA, the Classification Board or the Classification
Review Board by this Schedule.
Definition
(3) In this clause:
possession includes have in custody or control.
It is the intention of the Parliament that this Schedule 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 Schedule.
(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 Internet content host to liability (whether criminal or civil) in
respect of hosting particular Internet content in a case where the host was not
aware of the nature of the Internet content; or
(b) requires, or would have the effect (whether direct or indirect) of
requiring, an Internet content host to monitor, make inquiries about, or keep
records of, Internet content hosted by the host; 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 Internet content in a case where the
service provider was not aware of the nature of the Internet 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, Internet content carried by the provider.
(2) The Minister may, by written instrument, exempt a specified law of a
State or Territory, or a specified rule of common law or equity, from the
operation of subclause (1).
Note: For specification by class, see subsection 46(2) of
the Acts Interpretation Act 1901.
(3) An exemption under subclause (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 written 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 content host.
Note: For specification by class, see subsection 46(2) of
the Acts Interpretation Act 1901.
(5) The Minister may, by written 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 46(2) of
the Acts Interpretation Act 1901.
(6) A declaration under subclause (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.
(7) An instrument under subclause (2), (4) or (5) is a disallowable
instrument for the purposes of section 46A of the Acts Interpretation Act
1901.
(1) An application may be made to the AAT for a review of any of the
following decisions made by the ABA:
(a) a decision to give an Internet content host an interim take-down
notice;
(b) a decision to give an Internet content host a final take-down
notice;
(c) a decision to give an Internet content host a special take-down
notice;
(d) a decision under paragraph 28(2)(b) of this Schedule to request the
Classification Board to classify Internet content hosted in Australia by an
Internet content host;
(e) a decision to give an Internet service provider a standard
access-prevention notice;
(f) a decision to give an Internet service provider a special
access-prevention notice;
(g) a decision under clause 62 or 79 to:
(i) give a direction to an Internet service provider or an Internet
content host; or
(ii) vary a direction that is applicable to an Internet service provider
or an Internet content host; or
(iii) refuse to revoke a direction that is applicable to an Internet
service provider or an Internet content host;
(h) a decision of a kind referred to in subclause 76(6) (which deals with
decisions under online provider determinations), where the decision relates to
an Internet service provider or an Internet content host.
(2) An application under subclause (1) may only be made by the Internet
content host or Internet service provider concerned.
(3) An application may be made to the AAT for a review of a decision of
the ABA under clause 58 to refuse to register a code.
(4) An application under subclause (3) may only be made by the body or
association that developed the code.
If the ABA makes a decision that is reviewable under clause 88, the ABA
is to include in the document by which the decision is notified:
(a) a statement setting out the reasons for the decision; and
(b) a statement to the effect that an application may be made to the AAT
for a review of the decision.
The ABA has the following functions:
(a) to monitor compliance with codes and standards registered under Part 5
of this Schedule;
(b) to advise and assist parents and responsible adults in relation to the
supervision and control of children’s access to Internet
content;
(c) to conduct and/or co-ordinate community education programs about
Internet content and Internet carriage services, in consultation with relevant
industry and consumer groups and government agencies;
(d) to conduct and/or commission research into issues relating to Internet
content and Internet carriage services;
(e) to liaise with regulatory and other relevant bodies overseas about
co-operative arrangements for the regulation of the Internet industry, including
(but not limited to) collaborative arrangements to develop:
(i) multilateral codes of practice; and
(ii) Internet content labelling technologies;
(f) to inform itself and advise the Minister on technological developments
and service trends in the Internet industry.
A power conferred by this Schedule must not be exercised in such a way as
to prevent the exercise of the powers, or the performance of the functions, of
government of a State, the Northern Territory, the Australian Capital Territory
or Norfolk Island.
1 At the end of section
85ZE
Add:
(2) Paragraph (1)(b) does not apply to the use of a carriage service to
carry Internet content.
(3) This section is not intended to limit or exclude the concurrent
operation of any law of a State or Territory.
(4) In this section:
Internet content has the same meaning as in Schedule 5 to the
Broadcasting Services Act 1992.