Enhancing Online Safety for Children Amendment Act 2017

Administered by Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts

Legislation au C2017A00051 In force Act

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Enhancing Online Safety for Children Amendment Act 2017

 

No. 51, 2017

 

 

 

 

 

An Act to amend the Enhancing Online Safety for Children Act 2015, and for related purposes

 

 

Contents

1 Short title

2 Commencement

3 Schedules

Schedule 1—Amendments

Part 1—Main amendments

Enhancing Online Safety for Children Act 2015

Part 2—Consequential amendments

Australian Communications and Media Authority Act 2005

Broadcasting Services Act 1992

Criminal Code Act 1995

Freedom of Information Act 1982

Telecommunications Act 1997

Part 3—Saving and transitional provisions

 

 

 

 

Enhancing Online Safety for Children Amendment Act 2017

No. 51, 2017

 

 

 

An Act to amend the Enhancing Online Safety for Children Act 2015, and for related purposes

[Assented to 22 June 2017]

The Parliament of Australia enacts:

1  Short title

  This Act is the Enhancing Online Safety for Children Amendment Act 2017.

2  Commencement

 (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  The whole of this Act

The day after this Act receives the Royal Assent.

23 June 2017

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

 (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedules

  Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendments

Part 1—Main amendments

Enhancing Online Safety for Children Act 2015

1  Title

Omit “children”, substitute “Australians”.

2  Section 1

Omit “Enhancing Online Safety for Children Act 2015”, substitute “Enhancing Online Safety Act 2015”.

Note: This item amends the short title of the Act. If another amendment of the Act is described by reference to the Act’s previous short title, that other amendment has effect after the commencement of this item as an amendment of the Act under its amended short title (see section 10 of the Acts Interpretation Act 1901).

3  Section 3

Omit “a Children’s e‑Safety Commissioner”, substitute “an eSafety Commissioner”.

4  Section 3

Omit:

• A key function of the Commissioner is to administer a complaints system for cyber‑bullying material targeted at an Australian child.

substitute:

• The functions of the Commissioner include:

 (a) promoting online safety for Australians; and

 (b) administering a complaints system for cyber‑bullying material targeted at an Australian child; and

 (c) coordinating activities of Commonwealth Departments, authorities and agencies relating to online safety for children; and

 (d) administering the online content scheme under the Broadcasting Services Act 1992.

5  Section 3

After “The complaints system”, insert “for cyber‑bullying material targeted at an Australian child”.

6  Section 3

Omit:

• The functions of the Commissioner also include:

 (a) promoting online safety for children; and

 (b) coordinating activities of Commonwealth Departments, authorities and agencies relating to online safety for children; and

 (c) administering the online content scheme that was previously administered by the ACMA.

7  Section 4

Insert:

Australians means individuals who are ordinarily resident in Australia.

8  Section 4 (definition of Children’s Online Safety Special Account)

Repeal the definition.

9  Section 4 (definition of Commissioner)

Omit “Children’s e‑Safety Commissioner”, substitute “eSafety Commissioner”.

10  Section 4

Insert:

online safety for Australians means the capacity of Australians to use social media services and electronic services in a safe manner.

11  Section 4

Insert:

Online Safety Special Account means the Online Safety Special Account referred to in section 72.

12  Subsection 12(1)

Repeal the subsection, substitute:

 (1) The Commissioner must, as appropriate, have regard to the Convention on the Rights of the Child in the performance of functions:

 (a) conferred by or under this Act; and

 (b) in relation to Australian children.

13  Part 2 (heading)

Repeal the heading, substitute:

Part 2—eSafety Commissioner

14  Section 13

Repeal the section, substitute:

13  Simplified outline of this Part

• There is to be an eSafety Commissioner.

• The functions of the Commissioner include:

 (a) promoting online safety for Australians; and

 (b) administering a complaints system for cyber‑bullying material targeted at an Australian child; and

 (c) coordinating activities of Commonwealth Departments, authorities and agencies relating to online safety for children; and

 (d) administering the online content scheme under the Broadcasting Services Act 1992.

Note: For administrative provisions relating to the Commissioner, see Part 7.

15  Section 14 (heading)

Repeal the heading, substitute:

14  eSafety Commissioner

16  Section 14

Omit “a Children’s e‑Safety Commissioner”, substitute “an eSafety Commissioner”.

Note: This item alters the name of an office. Section 25B of the Acts Interpretation Act 1901 provides that the office continues in existence under the new name so that its identity is not affected.

17  Section 14 (note)

Omit “Children’s e‑Safety Commissioner”, substitute “eSafety Commissioner”.

18  Paragraphs 15(1)(b), (c) and (e) to (l)

Omit “online safety for children”, substitute “online safety for Australians”.

19  Subparagraph 15(1)(p)(i)

Omit “online safety for children”, substitute “online safety for Australians”.

20  Part 8 (heading)

Repeal the heading, substitute:

Part 8—Online Safety Special Account

21  Section 71

Omit “is established”, substitute “is continued in existence with the new name Online Safety Special Account”.

22  Section 72 (heading)

Repeal the heading, substitute:

72  Online Safety Special Account

23  Subsection 72(1)

Omit “is established by this section”, substitute “is continued in existence with the new name Online Safety Special Account”.

24  Paragraph 73(1)(b)

Omit “Children’s Online Safety Special Account”, substitute “Online Safety Special Account”.

25  Section 74

Omit “Children’s Online Safety Special Account”, substitute “Online Safety Special Account”.

26  Paragraph 74(a)

Omit “online safety for children”, substitute “online safety for Australians”.

27  Paragraph 80(1)(g)

Omit “children”, substitute “individuals”.

Part 2—Consequential amendments

Australian Communications and Media Authority Act 2005

28  Subparagraphs 57(aa)(i) and (ii)

Omit “Children’s e‑Safety Commissioner’s” (wherever occurring), substitute “eSafety Commissioner’s”.

29  Paragraph 59D(1)(la)

Omit “Children’s e‑Safety Commissioner”, substitute “eSafety Commissioner”.

Broadcasting Services Act 1992

30  Subsection 6(1) (definition of Commissioner)

Omit “Children’s e‑Safety Commissioner”, substitute “eSafety Commissioner”.

31  Paragraph 169A(a)

Omit “Enhancing Online Safety for Children Act 2015”, substitute “Enhancing Online Safety Act 2015”.

32  Paragraph 112(1)(d) of Schedule 7

Omit “Enhancing Online Safety for Children Act 2015”, substitute “Enhancing Online Safety Act 2015”.

Criminal Code Act 1995

33  Paragraph 273.9(5)(a) of the Criminal Code

Omit “Children’s e‑Safety Commissioner”, substitute “eSafety Commissioner”.

34  Paragraph 474.21(4)(a) of the Criminal Code

Omit “Children’s e‑Safety Commissioner”, substitute “eSafety Commissioner”.

35  Paragraph 474.24(4)(a) of the Criminal Code

Omit “Children’s e‑Safety Commissioner”, substitute “eSafety Commissioner”.

Freedom of Information Act 1982

36  Division 1 of Part II of Schedule 2

Omit:

Children’s e‑Safety Commissioner, in relation to:

(a) exempt content‑service documents concerning the performance of a function, or the exercise of a power, under Schedule 7 to the Broadcasting Services Act 1992; and

(b) exempt internet‑content documents concerning the performance of a function, or the exercise of a power, under Schedule 5 to that Act.

37  Division 1 of Part II of Schedule 2

Insert:

eSafety Commissioner, in relation to:

(a) exempt content‑service documents concerning the performance of a function, or the exercise of a power, under Schedule 7 to the Broadcasting Services Act 1992; and

(b) exempt internet‑content documents concerning the performance of a function, or the exercise of a power, under Schedule 5 to that Act.

Telecommunications Act 1997

38  Section 284 (heading)

Repeal the heading, substitute:

284  Assisting the ACMA, the eSafety Commissioner, the ACCC or the Telecommunications Industry Ombudsman

39  Subparagraph 284(1A)(a)(i)

Omit “Children’s e‑Safety Commissioner”, substitute “eSafety Commissioner”.

40  Subparagraph 284(1A)(a)(ii)

Omit “Children’s e‑Safety Commissioner’s”, substitute “eSafety Commissioner’s”.

41  Paragraph 284(1A)(b)

Omit “Children’s e‑Safety Commissioner”, substitute “eSafety Commissioner”.

42  Section 299 (heading)

Repeal the heading, substitute:

299  Assisting the ACMA, the eSafety Commissioner, the ACCC or the Telecommunications Industry Ombudsman

43  Subsection 299(1A)

Omit “Children’s e‑Safety Commissioner’s”, substitute “eSafety Commissioner’s”.

44  Section 299 (note)

After “the ACMA,”, insert “the eSafety Commissioner,”.

45  Section 579

Omit “Children’s e‑Safety Commissioner”, substitute “eSafety Commissioner”.

46  Subsection 581(2A)

Omit “Children’s e‑Safety Commissioner”, substitute “eSafety Commissioner”.

47  Paragraphs 581(2B)(a), (b) and (c)

Omit “Children’s e‑Safety Commissioner” (wherever occurring), substitute “eSafety Commissioner”.

Part 3—Saving and transitional provisions

48  Transitional provision—Children’s e‑Safety Commissioner

(1) A thing done by, or in relation to, the Children’s e‑Safety Commissioner under an Act before the commencement of this item has effect on and after that commencement as if it had been done by, or in relation to, the eSafety Commissioner.

(2) This item does not limit the operation of subsection 25B(1) of the Acts Interpretation Act 1901.

49  Saving provision—protection from criminal proceedings

Clause 112 of Schedule 7 to the Broadcasting Services Act 1992, as in force immediately before the commencement of this item, continues to apply on and after that commencement in relation to a person who was the Children’s e‑Safety Commissioner at any time before that commencement.

50  Saving provision—agencies exempt in respect of particular documents

Despite the amendments of Division 1 of Part II of Schedule 2 to the Freedom of Information Act 1982 made by this Schedule, the item in that Division relating to the Children’s e‑Safety Commissioner, being that item as in force immediately before the commencement of this item, continues in force on and after that commencement in relation to documents of that Commissioner.

51  Transitional rules

(1) The Minister may, by legislative instrument, make rules prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments made by this Act.

(2) However, to avoid doubt, the rules may not do the following:

 (a) create an offence or civil penalty;

 (b) provide powers of:

 (i) arrest or detention; or

 (ii) entry, search or seizure;

 (c) impose a tax;

 (d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;

 (e) directly amend the text of this Act.

(3) This Act (other than subitem (2)) does not limit the rules that may be made for the purposes of subitem (1).

 

 

 

 

[Minister’s second reading speech made in—

House of Representatives on 9 February 2017

Senate on 14 June 2017]

 

(1/17)

 

Overview

The Enhancing Online Safety for Children Amendment Act 2017 was enacted by the Parliament of Australia to amend the Enhancing Online Safety for Children Act 2015. The primary objective of this amendment was to broaden the scope of the Act from focusing solely on children to encompassing all Australians, thereby expanding the responsibility of the eSafety Commissioner. The Act also sought to streamline and clarify the functions of the eSafety Commissioner, integrating the administration of the online content scheme under the Broadcasting Services Act 1992 and promoting online safety for Australians in a more comprehensive manner. By renaming the Children's eSafety Commissioner to eSafety Commissioner and altering the title of the Act to the Enhancing Online Safety Act 2015, the amendment reflects a shift towards a more inclusive approach to online safety regulation. The Act ensures that any actions taken by the former Children's eSafety Commissioner prior to the amendment's commencement are recognised as valid under the new regime. Additionally, it provides transitional measures and safeguards to ensure continuity in the enforcement and administration of online safety laws during the transition period. The legislative amendments also update references and definitions throughout various related Acts to align with the new terminology and expanded scope, ensuring coherence and consistency across the legislative framework.

Scope and Application

The Enhancing Online Safety for Children Amendment Act 2017 amends the Enhancing Online Safety for Children Act 2015, broadening the scope of the legislation to apply to all Australians rather than just children. The Act applies to the eSafety Commissioner, who is tasked with promoting online safety for Australians, administering a complaints system for cyber-bullying material targeted at an Australian child, coordinating activities of Commonwealth Departments, authorities, and agencies relating to online safety for children, and administering the online content scheme under the Broadcasting Services Act 1992. The geographic reach of the Act is national, applying across Australia as a Commonwealth Act. The Act includes transitional provisions to ensure continuity in the functions and responsibilities of the eSafety Commissioner, including provisions that actions taken by the former Children’s eSafety Commissioner before the Act's commencement are considered to have been done by the eSafety Commissioner. Additionally, the Act extends to various other legislative instruments, ensuring that the amendments are comprehensively integrated across related Acts. The Minister is empowered to make subordinate instruments to address transitional matters, but these instruments cannot create offences, provide powers of arrest or detention, set taxes, or directly amend the text of the Act.

Key Provisions

The Enhancing Online Safety for Children Amendment Act 2017 (C2017A00051) amends the Enhancing Online Safety for Children Act 2015, extending the scope of online safety from children to all Australians. Section 1 of the Act changes the title of the original Act to the Enhancing Online Safety Act 2015. Section 3 replaces references to "Children’s e-Safety Commissioner" with "eSafety Commissioner" and expands the Commissioner’s functions to include promoting online safety for all Australians, administering a complaints system for cyber-bullying material targeted at any Australian, coordinating activities of Commonwealth departments, authorities, and agencies relating to online safety for Australians, and administering the online content scheme under the Broadcasting Services Act 1992. The definition of "Australians" is inserted in section 4, clarifying that it includes individuals ordinarily resident in Australia. The Act also introduces the term "Online Safety Special Account" to replace the previous "Children’s Online Safety Special Account," as per section 4 and section 72. The Act imposes several obligations on the eSafety Commissioner, as outlined in Part 2 of the Act. These include the promotion of online safety for all Australians, the administration of a complaints system for cyber-bullying material, coordination of relevant Commonwealth activities, and the administration of the online content scheme. Additionally, the Commissioner must have regard to the Convention on the Rights of the Child when performing functions in relation to Australian children, as specified in subsection 12(1). In terms of consequences for non-compliance, the Act does not explicitly state penalties for breaches of its provisions. However, given the nature of the amendments and the responsibilities of the eSafety Commissioner, failure to comply with the Act could potentially lead to legal repercussions under related Acts or regulations. For instance, failure to administer the online content scheme properly could result in penalties under the Broadcasting Services Act 1992 or the Telecommunications Act 1997. Moreover, non-compliance with the functions and duties outlined in the Act could potentially lead to civil or administrative penalties depending on the specific circumstances and the relevant laws governing those activities.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.