Explanatory Statement
Enhancing Online Safety for Children Act 2015
Enhancing Online Safety for Children (Tier 2 Social Media Services) Declaration 2015
Issued by the Authority of the Minister for Communications
Legislative Authority
The Enhancing Online Safety for Children (Tier 2 Social Media Services) Declaration 2015 (the Declaration) is made by the Minister for Communications (the Minister) under subsection 30(1) of the Enhancing Online Safety for Children Act 2015 (the Act).
Purpose
The purpose of the Declaration is to declare certain social media services to be ‘tier 2 social media services’ for the purposes of the Act.
Background
Part 4 of the Act provides a 2-tiered scheme for the rapid removal from social media services of cyber-bullying material targeted at an Australian child. This scheme is administered by the Children’s e-Safety Commissioner (Commissioner).
Division 2 of Part 4 of the Act provides for tier 1 social media services. The tier 1 scheme enables the provider of a social media service to apply to the Commissioner for declaration of the service as a tier 1 social media service. The Commissioner is required to make such a declaration if satisfied that the relevant service complies with the basic online safety requirements set out in section 21 of the Act and the service is not a tier 2 social media service. Social media services voluntarily participating under tier 1 are not subject to legally binding notices or penalties under the Act. This contrasts with the tier 2 scheme.
Division 3 of Part 4 of the Act provides for tier 2 social media services. These services are subject to direct regulation under the Act, including a civil penalty for failure to comply with a social media service notice issued by the Commissioner under section 35 of the Act.
Under subsection 30(1) of the Act, the Minister may, by legislative instrument, declare that a specified social media service is a tier 2 social media service for the purposes of the Act. However, the Minister must not make such a declaration unless the Commissioner has first made a recommendation in accordance with section 31 of the Act that the Minister declare the service as a tier 2 social media service.
Subsections 31(2) to (7) specify criteria that the Commissioner must apply before making any recommendation under subsection 31(1) of the Act. The criteria include a requirement for the Commissioner to consult with the provider of a social media service before making a recommendation under subsection 31(1) in relation to the service.
On 29 September 2015, the Commissioner made a recommendation in accordance with section 31 of the Act that the Minister declare the social media services listed in section 4 of the Declaration (the Relevant Services) to be tier 2 social media services.
Having regard to the Commissioner’s recommendation, the Minister has made the Declaration in relation to the Relevant Services.
Consultation
The Commissioner undertook two main consultation processes with the providers of the Relevant Services before making the recommendation under subsection 31(1) of the Act that the Minister declare those services to be tier 2 social media services.
The first phase of consultation related to the Commissioner inviting the providers of the Relevant Services to apply for tier 1 status, in accordance with subsection 31(4) of the Act. On 11 August 2015, the Commissioner wrote to each provider inviting them to apply within 28 days for their Relevant Service to be declared a tier 1 social media service. The Commissioner’s invitation noted that if the provider did not make an application for tier 1 status in relation to its Relevant Service, he would recommend that the Minister declare the service to be a tier 2 social media service. None of the providers elected to make an application under subsection 23(1) of the Act for tier 1 status.
In the second phase of consultation, the Commissioner consulted each provider on the proposed recommendation for Minister to declare their Relevant Service to be a tier 2 social media service, in accordance with subsection 31(6) of the Act. On 17 September 2015, the Commissioner wrote to each provider advising them of his intention to make a recommendation to the Minister for their Relevant Service to be declared a tier 2 social media service, and setting out the basis on which the Commissioner considered the criteria for making a recommendation under section 31 of the Act were satisfied. The providers were invited to make any comments in relation to the proposed recommendation by 24 September 2015.
All the Relevant Service providers responded to the Commissioner requesting that he reconsider making a recommendation on the basis of their respective activities in promoting online safety, including their cooperation with the Commissioner’s office since its establishment on 1 July 2015. In the recommendation to the Minister, the Commissioner noted and accepted each provider’s comments as to their involvement in promoting online safety, but did not consider this was sufficient reason not to recommend the Relevant Services be declared tier 2 social media services.
On the basis of the consultation undertaken by the Commissioner with the providers of the Relevant Services, further consultation in relation to the Declaration was considered unnecessary.
Regulation Impact
The Office of Best Practice Regulation has advised that a Regulation Impact Statement is not required for the actions of the Commissioner as the proposed instruments are machinery of Government. The reference for this decision is ID 19570.
Statement of Compatibility with Human Rights[1]
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
The Enhancing Online Safety for Children (Tier 2 Social Media Services) Declaration 2015 (the Declaration) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Declaration
The Declaration is made by the Minister for Communications (Minister) under subsection 30(1) of the Enhancing Online Safety for Children Act 2015 (the Act), and declares specified social media services to be ‘tier 2 social media services’ for the purposes of the Act.
Relevantly, Part 4 of the Act provides a 2-tiered scheme for the rapid removal from social media services of cyber-bullying material targeted at an Australian child. Social media services voluntarily participating under tier 1 of the scheme are not subject to legally binding notices or penalties under the Act. This contrasts with tier 2 of the scheme, which subjects declared tier 2 social media services to direct regulation under the Act, including a civil penalty for failure to comply with a social media service notice issued by the Children’s e-Safety Commissioner under section 35 of the Act.
Human rights implications
The Declaration does not engage any of the applicable rights or freedoms.
Although it is possible under the Act for the provider of a tier 2 social media service to be an individual, the tier 2 scheme is directed at regulating large social media services, which in almost all cases will be corporations or other organisational bodies. As the Declaration only imposes tier 2 status on social media services provided by corporations, it does not engage any of the applicable human rights or freedoms.
Conclusion
The Declaration is compatible with human rights and freedoms as it does not raise any human rights issues.
Notes on Sections
Section 1 – Name of instrument
Section 1 provides that the name of the Declaration is the Enhancing Online Safety for Children (Tier 2 Social Media Services) Declaration 2015.
Section 2 – Commencement
Section 2 provides that the Declaration will commence on the day after it is registered on the Federal Register of Legislative Instruments.
Section 3 – Definitions
Section 3 sets out definitions used in the Declaration.
Section 4 – Declared services
Section 4 sets out the list of social media services that are declared to be tier 2 social media services for the purposes of the Act.
[1] A detailed discussion of human rights implications in relation to the Act as a whole is set out in the explanatory memorandum for the Enhancing Online Safety for Children Bill 2014.