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A Bill for an Act to amend the law relating to communications, and for related purposes
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Registered 26 Sep 2007
Introduced Senate 20 Sep 2007

 

 

 

 

2004-2005-2006-2007

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

 

 

 

 

 

COMMUNICATIONS LEGISLATION AMENDMENT (CRIME OR TERRORISM RELATED INTERNET CONTENT) BILL 2007

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the

Minister for Communications, Information Technology and the Arts,

Senator the Honourable Helen Coonan


COMMUNICATIONS LEGISLATION AMENDMENT (CRIME OR TERRORISM RELATED INTERNET CONTENT) BILL 2007

 

OUTLINE

This bill proposes to amend Schedule 5 to the Broadcasting Services Act 1992 (BSA) to expand the ‘black list’ of internet addresses (URLs) that is currently maintained by the Australian Communications and Media Authority (the ACMA) to include terrorism and cyber crime sites.

The proposed amendments would allow the Australian Federal Police to notify ACMA in writing of websites that they have reason to believe are crime or terrorism‑related. 

In response to a notice received from the AFP, the ACMA must notify internet service providers (ISPs) of the crime or terrorism-related content.  The notification to ISPs will be in accordance with either the procedure contained in the applicable industry code of practice or industry standard, or absent such a code of practice procedure, by issuing a standard access prevention notice.  ISPs notified by the ACMA would be required to take reasonable steps to prevent end‑users of their Internet service from accessing that crime or terrorism‑related Internet content. 

It is anticipated that the current code of practice arrangements will continue in future, subject to such changes as are necessary to accommodate crime or terrorism‑related content that is notified to the ACMA by the AFP.  This would mean that, in accordance with the code, the ACMA would notify crime or terrorism-related content to accredited Internet content filter vendors in addition to the ISPs.  Filter vendors are accredited by the Internet Industry Association (Family Friendly Filters).  When they are notified by the ACMA of certain crime or terrorism-related content, vendors of Family Friendly Filters would need to update their filters and supply these to those end-users who have requested a filter (including a filter via the Government’s NetAlert: Protecting Australian Families Online initiative).

 

FINANCIAL IMPACT STATEMENT

 

The Bill is expected to have minimal financial impact on Commonwealth expenditure or revenue. 


NOTES ON CLAUSES

 

Clause 1 – Short title

 

Clause 1 provides for the citation of the Communications Legislation Amendment (Crime or Terrorism Related Internet Content) Act 2007 (the Act).

 

Clause 2 – Commencement

 

This clause would specify when the various provisions of the Bill are proposed to commence.  The time the commencement of the particular provisions would be set out in a table in subclause 2(1).

Item 1 of the table would provide that the preliminary provisions of the Bill (short title, commencement and effect of Schedules) would commence on Royal Assent.

Item 2 of the table would provide that Schedule 1 (which contains the amendments relating to crime and terrorism related internet content) would commence on a single day to be fixed by Proclamation.  However, if any provisions in Schedule 1 are not proclaimed to commence within 6 months of the Act receiving Royal Assent, they would commence on the day following that period.  It is expected that Schedule 1 would be proclaimed to commence before the expiration of the 6 month period.

Clause 3 – Schedule(s)

 

Clause 3 would provide that 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.  In addition, any other item in a Schedule to this Act has effect according to its terms.

 

Schedule 1 – Internet content

 

Schedule 1 amends Schedule 5 to the Broadcasting Services Act 1992 (the BSA) to enable the Australian Federal Police (the AFP) to notify certain types of Internet content to the Australian Communications and Media Authority (the ACMA). 

 

Schedule 5 to the BSA sets up a framework for regulating the Internet.  Within that framework the ACMA is responsible for monitoring Internet content (especially Internet content that is ‘prohibited content’ or ‘potential prohibited content’ as defined), and encouraging the Internet industry to develop and comply with codes of practice.

 

The proposed amendments would require the ACMA to notify Internet service providers (ISPs) of Internet content notifications received from the AFP.  This will enable steps to be taken to minimise Australian internet users’ exposure to the Internet content specified in the AFP notice.  In practice, this is most likely to be achieved through procedures set down in the ISP industry code of practice which require ISPs to make available to their customers Internet content filters that are capable of filtering content identified by the ACMA.  Filters with that capability are accredited by the Internet Industry Association as ‘Family Friendly’.  The industry code of practice provides that the ACMA must also notify suppliers of Family Friendly filters, so that filters can be updated from time to time.  In addition, Australian Internet users can obtain a free Internet content filter, which also filters content as notified by the ACMA from time to time, from the Australian Government through the Protecting Australian Families Online (PAFO) program (www.netalert.gov.au).

 

Item 1 – Clause 2 of Schedule 5

 

Clause 2 sets out a simplified outline of Schedule 5.  Item 1 would add a new paragraph into the simplified outline.  The new paragraph outlines the supplementary scheme for monitoring Internet content that would be enacted by the following items in this Bill.

 

Item 2 – Clause 3 of Schedule 5 (definition of AFP Commissioner)

Item 3 – Clause 3 of Schedule 5 (definition of crime or terrorism-related content)

Item 4 – Clause 3 of Schedule 5 (definition of standard access-prevention notice)

 

Items 2 to 4 would insert new definitions into clause 3 of Schedule 5.  These definitions are used in Schedule 5. 

 

Item 2 defines the term AFP Commissioner as the Commissioner of the Australian Federal Police. 

 

Item 3 defines the term crime or terrorism-related content to have the meaning given by clause 5A.  For further detail, see item 5.

 

Item 4 amends the current definition of standard access-prevention notice so that it will also refer to a notice under proposed paragraph 40(1B)(b) (Item 7 refers).

 

Item 5 – After clause 5 of Schedule 5

 

Item 5 inserts new clause 5A, which defines the meaning of the term crime or terrorism-related content.

 

Crime or terrorism-related content will be a subcategory of Internet content for the purposes of Schedule 5.  This type of content is distinct from content defined as prohibited content or potential prohibited content in that it is not defined with reference to the National Classification Scheme established under the Classification (Publications, Films and Computer Games) Act 1995 (the Classification Act). 

 

The purpose of including this category of Internet content in Schedule 5 of the BSA is to ensure that the ACMA is given some means of ensuring that people who use filters made available through the PAFO scheme, or Family Friendly Filters, are able to be shielded from accessing Internet content, hosted within or outside Australia, which would commit, or promote the commission of, a Commonwealth offence. This is most likely to occur when people inadvertently access URLs which are known to be used for the commission of cybercrime offences, such as phishing websites, and websites which seek to promote, fundraise or recruit, for terrorist organisations.

 

The hosting of crime or terrorism-related content within or outside of Australia will trigger the AFP Commissioner’s powers in new subclause 40(1A) (refer Item 7 below). 

 

Subclause 5A(3) makes it clear that for the purposes of defining crime or terrorism-related content within subclause 5A(1), it is immaterial whether the Internet content is prohibited content or potential prohibited content.  The purpose of this subclause is to confirm that the AFP notify crime or terrorism-related content to the ACMA regardless of whether the Internet content is considered to be prohibited content or potential prohibited content for the purposes of the existing framework within Schedule 5 of the BSA which is linked to the National Classification Scheme.  Notifications by the AFP are not intended to undercut the National Classification Scheme or the existing framework within the BSA, but rather work side by side with that framework. 

 

The practical effect of Division 4 as amended by this bill is that, in relation to Internet content that is hosted in Australia, there is potentially some overlap between:

·         the existing National Classification Scheme-based arrangements in Schedule 5 to the BSA, in which the ACMA is able to issue take-down notices with respect to ‘prohibited content’ or ‘potential prohibited content’; and

·        the proposed crime or terrorism-related content notifications by the AFP. 

 

However, the intention is that these two schemes will operate independently and where overlap occurs to identify Internet content which should be blacklisted or prohibited, appropriate action against such Internet content is able to be taken with respect to it.

 

Subsection 5A(4) makes it clear that for the purposes of defining crime or terrorism-related content within subsection 5A(1), a Commonwealth offence is an offence against a law of the Commonwealth and subsection 5A(5) provides that it is to be assumed that extended geographical jurisdiction (Category D as provided in section 15.4 of the Criminal Code Act 1995 (C’wlth) applies to those Commonwealth offences.

 

Item 6 – Division 4 of Part 4 of Schedule 5 (heading)

 

Reflecting the enlarged scope of Division 4 through the addition of crime or terrorism-related content, item 6 would repeal the current heading and insert a new heading.  

 

Item 7 – After subclause 40(1) of Schedule 5

 

Subclause 40(1) of Schedule 5 currently concerns actions to be taken in relation to complaints about prohibited content or potential prohibited content hosted outside Australia.  Prohibited content and potential prohibited content are subcategories of Internet content and are currently defined respectively in clauses 10 and 11 of Schedule 5. 

 

Paragraph 40(1)(b) of Schedule 5 currently requires the ACMA to use a designated notification scheme (DNS) established under the Internet Industry Code of Practice to deal with Internet content that is hosted outside of Australia which is prohibited content or potential prohibited content.  The end product of the DNS is colloquially known as the ACMA Black List (the Black List).  The DNS contained in the Code of Practice provides that the ACMA must directly notify ISPs and the suppliers of Family Friendly Filters of the URLs by which the relevant prohibited content or potential prohibited content can be identified. 

 

Currently, clause 40 of Schedule 5 is limited to overseas hosted content that is identified by the ACMA during the course of an investigation which is normally based on complaints received from members of the public.  Clause 40 does not enable the ACMA to update the Black List in the absence of an investigation (see subclause 40(1)).  Therefore, notifying URLs on the basis of referrals from other law enforcement agencies is not presently within the scope of clause 40; nor are notifications based on assessments made otherwise than in accordance with the National Classification Scheme. 

 

The effect of the proposed amendments in Item 7 would be to enable the ACMA to include in the Black List crime or terrorism-related Internet content that is referred to it by the AFP Commissioner.           

 

Item 7 would insert new subclauses (1A) and (1B) after subclause 40(1).  These new subclauses concern the action to be taken in relation to the hosting of crime or terrorism-related content outside Australia.

 

Crime or terrorism-related content is defined by new subclause 5A (Item 5 refers).   

 

New subclause 40(1A) provides that the AFP Commissioner may give the ACMA a written notice stating that he or she has reason to believe Internet content is crime or terrorism-related content

 

If the AFP Commissioner gives the ACMA a notice under subclause 40(1A), new subclause (1B) would require the ACMA to:

 

a)     if a code of practice is registered, or industry standard determined, under Part 5 of Schedule 5 dealing with the matters referred to in subclause 60(2) – notify the crime or terrorism-related content to Internet service providers under the DNS set out in the code or standard, as the case may be; or

 

b)    if paragraph (a) does not apply – give each Internet service provider known to the ACMA a written notice (a standard access-prevention notice) directing the provider to take all reasonable steps to prevent end-users from accessing the crime or terrorism-related content.

 

As part of the co-regulatory scheme established under Schedule 5 to the BSA, the Internet service provider section of the Internet industry is required to develop an industry code dealing with certain matters (subclause 60(1)).  The ACMA may determine an industry standard if a request for an industry code is not complied with, where no industry body or association is formed, or where there has been a total, or partial failure, of an industry code (see clauses 68-71 of Schedule 5). 

 

Subclause 60(2) provides for an industry code or industry standard, relating to the Internet service provider section of the Internet industry, to deal with the formulation of a DNS.  Subclause 60(2) also provides for a code or standard to deal with procedures to be followed by the Internet service providers in dealing with Internet content notified under paragraph 40(1)(b) (although, note the effect of item 20) or clause 46.

 

Therefore, if a code or standard deals with each of the matters set out in subclause 60(2), new subclause 40(1B) would require the ACMA to notify the crime or terrorism-related content to Internet service providers under the DNS.  

 

If a code or standard does not deal with these matters, however, new subclause 40(1B) would require the ACMA to give each known Internet service provider a standard access-prevention notice directing the provider to take all reasonable steps to prevent end-users from accessing the crime or terrorism-related content

 

The ACMA does not have the discretion to scrutinize or review the decisions made by the AFP Commissioner in relation to the notification of crime or terrorism-related content under subclause 40(1A).  Decisions for black listing websites will not be made public or subject to merits review by the Administrative Appeals Tribunal in order to protect potential criminal investigations conducted by the AFP.

   

As a result of the insertion of new subclauses 40(1A) and (1B), the heading to clause 40 will be altered to reflect the fact that clause 40 will apply to certain Internet content.

 

Item 8 – Subclause 40(2) of Schedule 5

 

Subclause 40(2) sets out the matters the ACMA must have regard to in determining whether particular steps are reasonable for the purposes of paragraph 40(1)(c).  As a result of the Item 7 amendments, Item 8 amends subclause 40(2) to include a reference to new paragraph 40(1B)(b). The matters set out under subclause 40(2) will also apply, therefore, in determining whether particular steps are reasonable for the purposes of new paragraph 40(1B)(b).

 

Item 9 – At the end of clause 40 of Schedule 5

 

Item 9 clarifies that the ACMA is not required to duplicate its actions where it has already taken action under subclause 40(1) or 40(1B) in relation to prohibited content or potentially prohibited content and crime or terrorism-related content

 

Item 10 – After clause 43 of Schedule 5

 

Item 10 would insert a new clause 43A into Schedule 5, which concerns the withdrawal of a notification of crime or terrorism-related content by the AFP Commissioner.

 

If the AFP Commissioner has provided notification to the ACMA in accordance with new paragraph 40(1B)(a), but the AFP Commissioner later gives the ACMA written notice that he or she no longer has reason to believe that the Internet content is crime or terrorism-related content, then the AFP Commissioner’s notification is taken to have been withdrawn. 

 

Similarly, if the AFP Commissioner has provided notification to the ACMA in accordance with new paragraph 40(1B)(a), but the AFP Commissioner later gives the ACMA written notice that he or she considers that is appropriate to withdraw the notice, the notice is taken to have been withdrawn. 

 

Whenever a notice from the AFP Commissioner is withdrawn, the ACMA must notify the ISPs concerned in accordance with the DNS set out in the applicable code of practice or industry standard.

 

Item 11 – After paragraph 44(1)(b) of Schedule 5

Item 12 – After paragraph 45(1)(c) of Schedule 5

 

Items 11 and 12 would insert a new paragraph to the effect that revocations of access‑prevention notices under clause 44 only apply to those notices given under paragraph 40(1)(c).  Paragraph 40(1)(c) notices only apply to Internet content that is prohibited content or potential prohibited content

 

The effect of these amendments is that revocations under these clauses do not apply to standard access-prevention notices given under new paragraph 40(1B)(b), which applies to crime or terrorism-related content.  This avoids doubling up of processes.

 

Item 13 – After clause 45 of Schedule 5

 

Item 13 would insert a new clause 45A, which deals with the revocation of standard access prevention notices relating to crime or terrorism-related content.  The insertion of new clause 45A highlights the differing treatment afforded to prohibited content and potential prohibited content, and crime or terrorism-related content under Schedule 5. 

 

New clause 45A provides that if the ACMA has issued a standard access‑prevention notice regarding crime or terrorism-related content (following prior notification from the AFP Commissioner under subclause 40(1B)), but the AFP Commissioner later writes to inform the ACMA that he or she no longer has reason to believe that the Internet content is crime or terrorism-related content, then the ACMA is taken to have revoked the access-prevention notice.  The ACMA must give written notice of the revocation to the internet service provider subject to the access‑prevention notice.

 

Similarly, if the AFP Commissioner decides that it appropriate to revoke the notification to the ACMA for other reasons, then the ACMA is also taken to have revoked the access-prevention notice (subclause 45A(2)).

 

Item 14 – After paragraph 47(1)(a) of Schedule 5  

 

Item 14 would insert a new paragraph 47(1)(aa) with the effect that the anti-avoidance measures provided for in clause 47 only apply to those standard access-prevention notices given under paragraph 40(1)(c), which only applies to Internet content that is prohibited content or potential prohibited content for the purposes of Schedule 5.  The effect of this amendment is that the clause 47 anti-avoidance measures will not apply to standard access-prevention notices given under new paragraph 40(1B)(b), which applies to crime or terrorism-related content

 

Item 15 – After subparagraph 51(1)(b)(i) of Schedule 5

Item 16 – Subparagraph 51(1)(b)(ii) of Schedule 5

Item 17 – Subparagraph 51(1)(b)(iii) of Schedule 5

Item 18 – After subclause 51(3) of Schedule 5

 

Clause 51 of Schedule 5 empowers the ACMA to formulate, by legislative instrument, a substituted service scheme under which the ACMA is taken to have given Internet service providers certain notices for the purposes of Schedule 5. Currently, clause 51 only applies to notices given under paragraph 40(1)(c), subclause 44(2) or 45(2) and clause 47, which all relate to Internet content that is prohibited content or potential prohibited content for the purposes of Schedule 5. 

 

The effect of the amendments in items 14-16 would be to extend the application of clause 51 to notices relating to crime or terrorism-related content and given by the ACMA under paragraph 40(1B)(b), clause 45A and subclause 45A(3). 

 

Item 18 would also amend clause 51 to provide that paragraph 40(1B)(b) 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 ACMA were a reference to each Internet service provider.  

 

Item 19 – At the end of Division 4 of Part 4 of Schedule 5

 

Item 19 would add new clauses 51A and 51B to Schedule 5. 

 

New clause 51A provides that the AFP Commissioner must have regard to guidelines formulated by the Commonwealth Attorney-General in relation to the exercise of his or her powers under subclause 40(1A). 

 

These guidelines would outline how the AFP Commissioner would arrive at a decision to refer a URL to the ACMA for incorporation in their Blacklist, including that the AFP Commissioner would focus on referring matters which the AFP came across during the course of their investigations.  

 

Guidelines made by the Attorney-General would be a legislative instrument for the purposes of the Legislative Instruments Act 2003 (the LIA Act).  Consequently, the guidelines would be subject to the requirements of that Act, including the requirement to table the guidelines in each House of Parliament for the purposes of Parliamentary scrutiny (see section 38 of the LIA Act).  During that time, the guidelines may be subject to disallowance by Parliament (see section 42 of the LIA Act). 

 

In accordance with Part 4 of the LIA Act, the guidelines would be registered on the Federal Register of Legislative Instruments (FRLI).  The FRLI is available to the public online at http://www.frli.gov.au.

 

The Attorney-General may formulate the guidelines under subclause 51A(2) after this Bill has received Royal Assent and before commencement of this Schedule (see section 4 of the Acts Interpretation Act 1901). 

 

New clause 51B provides that the AFP Commissioner may, in writing, delegate to a Deputy Commissioner or a senior executive AFP employee (as defined in the Australian Federal Police Act 1979), all or any of the powers of the AFP Commissioner under Division 4 of Part 4 of Schedule 5 to the BSA.  In exercising powers under a delegation, the delegate must comply with any directions of the AFP Commissioner.    

 

Item 20 – Subclauses 60(2), (3), (7) and (8) of Schedule 5

 

Clause 60 deals with matters that must be dealt with by industry codes of practice and industry standards formulated under Schedule 5.  Clause 60 currently refers to notices given by the ACMA under paragraph 40(1)(b), which relates to Internet content that is prohibited content or potential prohibited content.

 

Consequential to the amendments proposed by Item 7, Item 20 would insert references to new paragraph 40(1B)(a) in subclauses 60(2), (3), (7) and (8).  Paragraph 40(1B)(a) relates to the ACMA’s issuing of standard access-prevention notices that direct Internet service providers to take all reasonable steps to prevent end-users from accessing crime or terrorism-related content.

 

Item 21 – At the end of subclause 62(1) of Schedule 5

 

Clause 62 of Schedule 5 to the BSA provides for the registration of industry codes of practice by the ACMA. Before registering a code, the ACMA must satisfy itself of certain things, including that the code is consistent with regulatory policy and deals with all the mandatory matters listed in subclause 60(1).

 

Consequential to the amendments to be inserted by Item 19, Item 21 would require the ACMA to be satisfied that a code which pre-dates the commencement of the amendments to be enacted by this bill, and relates to the Internet service provider section of the Internet industry, will be consistent with the amended subclause 60(2). 

 

Item 22 – Transitional – industry codes and industry standards

 

Item 22 would provide a transitional arrangement so that amendments made to clause 60 of Schedule 5 to the BSA by this Bill do not affect the continuity of registered codes of practice or industry standards that are in force immediately before the commencement of item 22 – even if they do not, after the commencement of item 22, comply with clause 60 as amended by this Bill.

 

Parliament intends, however, that the ACMA should, within 90 days after the commencement of item 22, take action under Schedule 5 with the aim of ensuring compliance with clause 60 as amended by this Bill.