BROADCASTING SERVICES AMENDMENT (ONLINE SERVICES) ACT 1999 NO. 90, 1999 - SCHEDULE 1 - Amendment of the Broadcasting Services Act 1992

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BROADCASTING SERVICES AMENDMENT (ONLINE SERVICES) ACT 1999 NO. 90, 1999 - SCHEDULE 1

- Amendment of the Broadcasting Services Act 1992

1 Title

After " broadcasting services ", insert " and online services ".

2 At the end of section 3

Add:

(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:

(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; and
(iii): the supply of Internet carriage services at performance standards that reasonably meet the social, industrial and commercial needs of 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:

216B Schedule 5 (online services)

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:

(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:

Schedule 5—Online services

: Note: See section 216B.

Part 1—Introduction

1 Explanation of the context of this Schedule

(1): This clause explains, in simplified form, the context of this Schedule within the proposed Australian scheme for dealing with content on the Internet.

This Schedule

(2): The first component of the proposed scheme is this Schedule, which regulates Internet service providers and Internet content hosts, but does not impose any obligations on:

(a): producers of content; or
(b): persons who upload or access content.

State/Territory laws and section 85ZE of the Crimes Act 1914

(3): The second component of the proposed scheme will be:

(a): State/Territory laws that impose obligations on:

(i): producers of content; and
(ii): persons who upload or access content; and

(b): section 85ZE of the Crimes Act 1914 .

Non-legislative initiatives

(4): The third component of the proposed scheme will be a range of non-legislative initiatives directed towards:

(a): monitoring content on the Internet; and
(b): educating and advising the public about content on the Internet.

2 Simplified outline

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.

3 Definitions

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.

business day means a day that is not a Saturday, a Sunday or a public holiday in the place concerned.

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 30(1) or paragraph 30(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 30(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:

(c): ordinary electronic mail; or
(d): 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 8.

listed carriage service has the same meaning as in the Telecommunications Act 1997 .

online provider rule has the meaning given by clause 79.

ordinary electronic mail does not include a posting to a newsgroup.

point-to-multipoint service has the same meaning as in the Telecommunications Act 1997 .

potential prohibited content has the meaning given by clause 11.

prohibited content has the meaning given by clause 10.

restricted access system has the meaning given by clause 4.

special access-prevention notice means a notice under clause 47.

special take-down notice means a notice under clause 36.

standard access-prevention notice means a notice under paragraph 40(1)(c) of this Schedule.

4 Restricted access system

(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): An instrument under subclause (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

5 Internet content that consists of a film

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.

6 Replacement of X classification

(1): If the Classification (Publications, Films and Computer Games) Act 1995 is amended by replacing the classification X with another classification, this Schedule has effect as if each reference in this Schedule to the classification X were a reference to the other classification.
(2): To avoid doubt, the rule in subclause (1) applies even if the other classification is not equivalent to the classification X.

7 Extended meaning of use

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.

Part 2—Internet service providers

8 Internet service providers

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 .

9 Supply to the public

(1): This clause sets out the circumstances in which an Internet carriage service is taken, for the purposes of subclause 8(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 .

Part 3—Prohibited content Division 1—Prohibited content and potential prohibited content 10 Prohibited content

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 3.

11 Potential prohibited content

(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.

12 Classification of Internet content that consists of a film or a computer game

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 .

13 Classification of Internet content that does not consist of a film or a computer game

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 .

Division 2—Reclassification 14 Reclassification of Internet content

(1): If Internet content has been classified by the Classification Board (otherwise than because of subclause 12(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.

15 Notice of intention to reclassify Internet content

(1): If:

(a): Internet content has been classified by the Classification Board (otherwise than because of subclause 12(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.

Division 3—Review of classification decisions

Subdivision A—Review of classification of Internet content

16 Persons who may apply for review

If Internet content has been classified by the Classification Board (otherwise than because of subclause 12(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.

17 Applications for review

(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.

18 Review

(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.

Subdivision B—Review of Internet content that consists of a film or a computer game

19 Review of classification of Internet content that consists of a film or a computer game

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.

Division 4—Miscellaneous 20 Fees for classification of Internet content

(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 16).

modifications includes additions, omissions and substitutions.

21 Decisions of the Classification Board etc.

(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.

Part 4—Complaints to, and investigations by, the ABA Division 1—Making of complaints to the ABA 22 Complaints about prohibited content or potential prohibited content

Complaints about access to prohibited content or potential prohibited content

(1): If a person has reason to believe that end-users in Australia can access prohibited content or potential prohibited content using an Internet carriage service, 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.

Transitional

(5): A person is not entitled to make a complaint under subclause (1) or (2) about something that occurs before 1 January 2000.

23 Complaints about breaches of online provider rules etc.

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.

24 Form of complaint

(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.

25 Residency etc. of complainant

A person is not entitled to make a complaint under this Division unless the person is:

(a): an individual who resides in Australia; or
(b): a body corporate that carries on activities in Australia; or
(c): the Commonwealth, a State or a Territory.

Division 2—Investigations by the ABA 26 Investigation of complaints by the ABA

(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 re sults 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.

27 ABA may investigate matters on its own initiative

(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.

28 Conduct of investigations

(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).

29 Protection from civil proceedings

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.

Division 3—Action to be taken in relation to a complaint about prohibited content hosted in Australia 30 Action to be taken in relation to a complaint about prohibited content hosted in Australia

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.

31 Deferral of action in order to avoid prejudicing a criminal investigation

(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 30(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 30.

32 Revocation of final take-down notices—subsequent implementation of restricted access system for R-rated content

(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.

33 Revocation of interim take-down notices—voluntary withdrawal of Internet content

(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 30(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.

34 Revocation of take-down notices—reclassification of Internet content

(1): If:

(a): Internet content has been classified by the Classification Board (otherwise than because of subclause 12(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.

35 Revocation of take-down notices—reclassification of Internet content that consists of a film or a computer game

(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.

36 Anti-avoidance—special take-down notices

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 the same as, or 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.

37 Compliance with rules relating to prohibited content etc.

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 by 6 pm on the next business day, 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 by 6 pm on the next business day, 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 by 6 pm on the next business day, 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 33.

: Note: For enforcement, see Part 6 of this Schedule.

38 Identification of Internet content

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.

39 Application of notices under this Division

A notice under this Division applies to particular Internet content only to the extent to which the content is accessed, or available for access, from an Internet site, or a distinct part of an Internet site, specified in the notice.

: Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901 .

Division 4—Action to be taken in relation to a complaint about prohibited content hosted outside Australia 40 Action to be taken in relation to a complaint about prohibited content hosted outside Australia

(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 60(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 51.

(2): For the purposes of paragraph (1)(c), in determining whether particular steps are reasonable, regard must be had to:

(a): the technical and commercial feasibility of taking the steps; and
(b): the matters set out in subsection 4(3).

(3): Subclause (2) does not, by implication, limit the matters to which regard must be had.

Recognised alternative access-prevention arrangements

(4): An Internet service provider is not required to comply with a standard access-prevention notice in relation to a particular end-user if access by the end-user is subject to a recognised alternative access-prevention arrangement (as defined by subclause (5)) that is applicable to the end-user.
(5): The ABA may, by written instrument, declare that a specified arrangement is a recognised alternative access-prevention arrangement for the purposes of the application of this Division to one or more specified end-users if the ABA is satisfied that the arrangement is likely to provide a reasonably effective means of preventing access by those end-users to prohibited content and potential prohibited content.

: Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901 .

(6): The following are examples of arrangements that could be declared to be recognised alternative access-prevention arrangements under subclause (5):

(a): an arrangement that involves the use of regularly updated Internet content filtering software;
(b): an arrangement that involves the use of a "family-friendly" filtered Internet carriage service.

(7): An instrument under subclause (5) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

Referral to law enforcement agency

(8): 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.
(9): 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).
(10): This clause does not, by implication, limit the ABA's powers to refer other matters to a member of an Australian police force.

41 Deferral of action in order to avoid prejudicing a criminal investigation

(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 40(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 40.

42 Withdrawal of notification of content—reclassification of Internet content

(1): If:

(a): Internet content has been classified by the Classification Board (otherwise than because of subclause 12(1)); and
(b): the Internet content has been notified to Internet service providers as mentioned in paragraph 40(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 60(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.

43 Withdrawal of notification of content—reclassification of Internet content that consists of a film or a computer game

(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 40(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 60(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.

44 Revocation of standard access-prevention notice—reclassification of Internet content

(1): If:

(a): Internet content has been classified by the Classification Board (otherwise than because of subclause 12(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 51.

45 Revocation of standard access-prevention notice—reclassification of Internet content that consists of a film or a computer game

(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 51.

46 Anti-avoidance—notified Internet content

(1): If:

(a): particular Internet content has been notified to Internet service providers as mentioned in paragraph 40(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 the same as, or 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 60(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 40(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 60(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.

47 Anti-avoidance—special access-prevention notice

(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 the same as, or 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 51.

(2): For the purposes of subclause (1), in determining whether particular steps are reasonable, regard must be had to:

(a): the technical and commercial feasibility of taking the steps; and
(b): the matters set out in subsection 4(3).

(3): Subclause (2) does not, by implication, limit the matters to which regard must be had.

Recognised alternative access-prevention arrangements

(4): An Internet service provider is not required to comply with a special access-prevention notice in relation to a particular end-user if access by the end-user is subject to a recognised alternative access-prevention arrangement (as defined by subclause 40(5)) that is applicable to the end-user.

48 Compliance with access-prevention notices

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 by 6 pm on the next business day, 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 by 6 pm on the next business day, after the notice was given to the provider.

: Note: For enforcement, see Part 6 of this Schedule.

49 Notification of Internet content

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.

50 Application of notifications under this Division

A notification under this Division applies to particular Internet content only to the extent to which the content is accessed, or available for access, from an Internet site, or a distinct part of an Internet site, specified in the notification.

: Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901 .

51 ABA may be taken to have issued access-prevention notices

(1): Subject to subclause (2), 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 40(1)(c) of this Schedule;
(ii): in a case where a standard access-prevention notice is revoked under clause 44 or 45—given each Internet service provider a notice of the revocation under whichever of subclause 44(2) or 45(2) is applicable;
(iii): given each Internet service provider a special access-prevention notice under clause 47.

(2): It is a minimum requirement for a scheme formulated under subclause (1) that each Internet service provider be alerted by electronic means to the existence of a notice.

: Note: For example, it is not sufficient for the ABA to make notices available on the Internet (with or without security measures) without notifying Internet service providers that a notice has been issued.

(3): Paragraph 40(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.
(4): An instrument under subclause (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

Part 5—Industry codes and industry standards Division 1—Simplified outline 52 Simplified outline

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.

Division 2—Interpretation 53 Industry codes

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).

54 Industry standards

For the purposes of this Part, an industry standard is a standard determined under this Part.

55 Internet activity

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.

56 Sections of the Internet industry

(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.

57 Participants in a section of the Internet industry

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.

58 Designated body

(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 .

Division 3—General principles relating to industry codes and industry standards 59 Statement of regulatory policy

(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 60(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.

60 Matters that must be dealt with by industry codes and industry standards

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 22 or 23;
(h): procedures to be followed in order to assist customers to make complaints under clause 22 or 23;
(i): procedures to be followed in order to deal with complaints about unsolicited electronic mail that promotes or advertises one or more:

(i): Internet sites; or
(ii): distinct parts of Internet sites;

(j): action to be taken to assist in the development and implementation of Internet content filtering technologies (including labelling technologies);
(k): giving customers information about the availability, use and appropriate application of Internet content filtering software;
(l): procedures directed towards the achievement of the objective of ensuring that customers have the option of subscribing to a filtered Internet carriage service;
(m): 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 40(1)(b) of this Schedule or clause 46 (for example, procedures to be followed by a particular class of Internet service providers for the filtering, by technical means, of such content).

Designated alternative access-prevention arrangements

(3): An industry code or an industry standard may provide that an Internet service provider is not required to deal with Internet content notified under paragraph 40(1)(b) of this Schedule or clause 46 by taking steps to prevent particular end-users from accessing the content if access by the end-users is subject to an arrangement that is declared by the code or standard to be a designated alternative access-prevention arrangement for the purposes of the application of this clause to those end-users.
(4): An industry code developed by a body or association must not declare that a specified arrangement is a designated alternative access-prevention arrangement for the purposes of the application of this clause to one or more specified end-users unless the body or association is satisfied that the arrangement is likely to provide a reasonably effective means of preventing access by those end-users to prohibited content and potential prohibited content.

: Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901 .

(5): An industry standard made by the ABA must not declare that a specified arrangement is a designated alternative access-prevention arrangement for the purposes of the application of this clause to one or more specified end-users unless the ABA is satisfied that the arrangement is likely to provide a reasonably effective means of preventing access by those end-users to prohibited content and potential prohibited content.

: Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901 .

(6): The following are examples of arrangements that could be declared to be designated alternative access-prevention arrangements:

(a): an arrangement that involves the use of regularly updated Internet content filtering software;
(b): an arrangement that involves the use of a "family-friendly" filtered Internet carriage service.

(7): For the purposes of this Schedule, if an industry code:

(a): deals to any extent with procedures to be followed by Internet service providers in dealing with Internet content notified under paragraph 40(1)(b) of this Schedule or clause 46; and
(b): makes provision as mentioned in subclause (3);

then:

(c): the code is taken to deal with the matter set out in paragraph (2)(d); and
(d): the code is taken to be consistent with subclause (2).

(8): For the purposes of this Schedule, if an industry standard:

(a): deals to any extent with procedures to be followed by Internet service providers in dealing with Internet content notified under paragraph 40(1)(b) of this Schedule or clause 46; and
(b): makes provision as mentioned in subclause (3);

then:

(c): the standard is taken to deal with the matter set out in paragraph (2)(d); and
(d): the standard is taken to be consistent with subclause (2).

Clause does not limit matters

(9): This clause does not, by implication, limit the matters that may be dealt with by industry codes and industry standards.

61 Industry codes and industry standards not to deal with certain matters

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).

Division 4—Industry codes </