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2004-2005-2006-2007

The Parliament of the


Commonwealth of Australia

THE SENATE

Presented and read a first time

Communications Legislation
Amendment (Crime or Terrorism
Related Internet Content) Bill 2007
No. , 2007
(Communications, Information Technology and the Arts)

A Bill for an Act to amend the law relating to


communications, and for related purposes
Contents
1 Short title ........................................................................................... 1
2 Commencement ................................................................................. 1
3 Schedule(s) ........................................................................................ 2

Schedule 1—Internet content 3


Broadcasting Services Act 1992 3
1 A Bill for an Act to amend the law relating to
2 communications, and for related purposes
3 The Parliament of Australia enacts:
4 1 Short title
5 This Act may be cited as the Communications Legislation
6 Amendment (Crime or Terrorism Related Internet Content) Act
7 2007.

8 2 Commencement
9 (1) Each provision of this Act specified in column 1 of the table
10 commences, or is taken to have commenced, in accordance with
11 column 2 of the table. Any other statement in column 2 has effect
12 according to its terms.
13

Communications Legislation Amendment (Crime or Terrorism Related Internet Content) Bill


2007 No. , 2007 1
Commencement information
Column 1 Column 2 Column 3
Provision(s) Commencement Date/Details
1. Sections 1 to 3 The day on which this Act receives the
and anything in Royal Assent.
this Act not
elsewhere covered
by this table
2. Schedule 1 A single day to be fixed by Proclamation.
However, if any of the provision(s) do not
commence within the period of 6 months
beginning on the day on which this Act
receives the Royal Assent, they commence
on the first day after the end of that period.
1 Note: This table relates only to the provisions of this Act as originally
2 passed by both Houses of the Parliament and assented to. It will not be
3 expanded to deal with provisions inserted in this Act after assent.

4 (2) Column 3 of the table contains additional information that is not


5 part of this Act. Information in this column may be added to or
6 edited in any published version of this Act.

7 3 Schedule(s)
8 Each Act that is specified in a Schedule to this Act is amended or
9 repealed as set out in the applicable items in the Schedule
10 concerned, and any other item in a Schedule to this Act has effect
11 according to its terms.
1

2 Schedule 1—Internet content


3

4 Broadcasting Services Act 1992


5 1 Clause 2 of Schedule 5
6 After:

7 • If the ACMA is satisfied that Internet content hosted outside


8 Australia is prohibited content or potential prohibited content,
9 the ACMA must:

10 (a) if the ACMA considers that the content is of a


11 sufficiently serious nature to warrant referral to a
12 law enforcement agency—notify the content to an
13 Australian police force; and

14 (b) notify the content to Internet service providers so


15 that the providers can deal with the content in
16 accordance with procedures specified in an
17 industry code or industry standard (for example,
18 procedures for the filtering, by technical means, of
19 such content).

20 insert:

21 • If the AFP Commissioner has reason to believe that Internet


22 content is crime or terrorism related content, the ACMA must
23 notify the content to Internet service providers so that the
24 providers can deal with the content in accordance with
25 procedures specified in an industry code or industry standard
26 (for example, procedures for the filtering, by technical means,
27 of such content).

28 2 Clause 3 of Schedule 5
29 Insert:
30 AFP Commissioner means the Commissioner of the Australian
31 Federal Police.
1 3 Clause 3 of Schedule 5
2 Insert:
3 crime or terrorism related content has the meaning given by
4 clause 5A.

5 4 Clause 3 of Schedule 5 (definition of standard


6 access-prevention notice)
7 After “40(1)(c)”, insert “or (1B)(b)”.

8 5 After clause 5 of Schedule 5


9 Insert:

10 5A Crime or terrorism related content


11 (1) For the purposes of this Schedule, crime or terrorism related
12 content is Internet content that satisfies the following conditions:
13 (a) the Internet content is accessed, or available for access, from:
14 (i) an Internet site; or
15 (ii) a distinct part of an Internet site;
16 (b) any of the following subparagraphs applies:
17 (i) the Internet content (when considered in isolation or in
18 conjunction with any other Internet content that is
19 accessed, or available for access, from that Internet site
20 or that part of the Internet site) encourages, incites or
21 induces the commission of a Commonwealth offence;
22 (ii) the purpose, or one of the purposes, of the Internet
23 content (when considered in isolation or in conjunction
24 with any other Internet content that is accessed, or
25 available for access, from that Internet site or that part
26 of the Internet site) is to facilitate the commission of a
27 Commonwealth offence;
28 (iii) the Internet content (when considered in isolation or in
29 conjunction with any other Internet content that is
30 accessed, or available for access, from that Internet site
31 or that part of the Internet site) has, or is likely to have,
32 the effect of facilitating the commission of a
33 Commonwealth offence.
1 (2) For the purposes of subclause (1), it is immaterial whether the
2 Internet content is hosted in or outside Australia.
3 (3) For the purposes of subclause (1), it is immaterial whether the
4 Internet content is prohibited content or potential prohibited
5 content.
6 (4) For the purposes of subclause (1), a Commonwealth offence is an
7 offence against a law of the Commonwealth.
8 (5) For the purposes of subclause (4), it is to be assumed that
9 section 15.4 of the Criminal Code (extended geographical
10 jurisdiction—category D) applies to each offence against a law of
11 the Commonwealth.

12 6 Division 4 of Part 4 of Schedule 5 (heading)


13 Repeal the heading, substitute:

14 Division 4—Action to be taken in relation to certain


15 Internet content
16 7 After subclause 40(1) of Schedule 5
17 Insert:

18 Crime or terrorism related content


19 (1A) The AFP Commissioner may give the ACMA a written notice
20 stating that he or she has reason to believe that Internet content is
21 crime or terrorism related content.
22 (1B) If the AFP Commissioner gives the ACMA a notice under
23 subclause (1A) in relation to Internet content, the ACMA must:
24 (a) if a code registered, or standard determined, under Part 5 of
25 this Schedule deals with the matters referred to in subclause
26 60(2)—notify the content to Internet service providers under
27 the designated notification scheme set out in the code or
28 standard, as the case may be; or
29 (b) if paragraph (a) does not apply—give each Internet service
30 provider known to the ACMA a written notice (a standard
31 access-prevention notice) directing the provider to take all
32 reasonable steps to prevent end-users from accessing the
33 content.
1 Note: The ACMA may be taken to have given a notice under
2 paragraph (b)—see clause 51.
3 Note 1: The heading to clause 40 of Schedule 5 is altered by omitting “a complaint about
4 prohibited content hosted outside Australia” and substituting “certain Internet
5 content”.
6 Note 2: The following heading to subclause 40(1) of Schedule 5 is inserted “Overseas-hosted
7 prohibited content etc.”.

8 8 Subclause 40(2) of Schedule 5


9 Omit “paragraph (1)(c)”, substitute “paragraphs (1)(c) and (1B)(b)”.
10 Note: The following heading to subclause 40(2) of Schedule 5 is inserted “Reasonable steps”.

11 9 At the end of clause 40 of Schedule 5


12 Add:

13 ACMA not required to duplicate action that has already been taken
14 (11) Despite subclause (1), the ACMA is not required to take action
15 under that subclause in relation to Internet content if the ACMA
16 has already taken action under subclause (1B) in relation to that
17 Internet content.
18 (12) Despite subclause (1B), the ACMA is not required to take action
19 under that subclause in relation to Internet content if the ACMA
20 has already taken action under subclause (1) in relation to that
21 Internet content.

22 10 After clause 43 of Schedule 5


23 Insert:

24 43A Withdrawal of notification of crime or terrorism related


25 content
26 (1) If:
27 (a) Internet content has been notified to Internet service
28 providers as mentioned in paragraph 40(1B)(a) of this
29 Schedule; and
30 (b) the AFP Commissioner gives the ACMA a written notice
31 stating that he or she does not have reason to believe that the
32 Internet content is crime or terrorism related content;
1 the notification of the Internet content is taken to have been
2 withdrawn.
3 (2) If:
4 (a) Internet content has been notified to Internet service
5 providers as mentioned in paragraph 40(1B)(a) of this
6 Schedule; and
7 (b) the AFP Commissioner informs the ACMA, in writing, that
8 he or she considers that it is appropriate to withdraw the
9 notification of the Internet content;
10 the notification of the Internet content is taken to have been
11 withdrawn.
12 (3) If:
13 (a) a notification of Internet content is withdrawn under
14 subclause (1) or (2); and
15 (b) a code registered, or standard determined, under Part 5 of this
16 Schedule deals with the matters referred to in subclause
17 60(2);
18 the ACMA must notify the withdrawal to Internet service providers
19 under the designated notification scheme set out in the code or
20 standard, as the case may be.

21 11 After paragraph 44(1)(b) of Schedule 5


22 Insert:
23 (ba) the standard access-prevention notice was given under
24 paragraph 40(1)(c) of this Schedule; and

25 12 After paragraph 45(1)(c) of Schedule 5


26 Insert:
27 (ca) the standard access-prevention notice was given under
28 paragraph 40(1)(c) of this Schedule; and

29 13 After clause 45 of Schedule 5


30 Insert:

31 45A Revocation of standard access-prevention notice—crime or


32 terrorism related content
33 (1) If:
1 (a) a standard access-prevention notice relating to the Internet
2 content is applicable to a particular Internet service provider;
3 and
4 (b) the standard access-prevention notice was given under
5 paragraph 40(1B)(b) of this Schedule; and
6 (c) the AFP Commissioner informs the ACMA, in writing, that
7 he or she does not have reason to believe that the Internet
8 content is crime or terrorism related content;
9 the ACMA is taken to have revoked the standard access-prevention
10 notice.
11 (2) If:
12 (a) a standard access-prevention notice relating to the Internet
13 content is applicable to a particular Internet service provider;
14 and
15 (b) the standard access-prevention notice was given under
16 paragraph 40(1B)(b) of this Schedule; and
17 (c) the AFP Commissioner informs the ACMA, in writing, that
18 he or she considers that it is appropriate to revoke the
19 standard access-prevention notice;
20 the ACMA is taken to have revoked the standard access-prevention
21 notice.
22 (3) If a standard access-prevention notice is revoked under
23 subclause (1) or (2), the ACMA must give the Internet service
24 provider concerned a written notice stating that the standard
25 access-prevention notice has been revoked.
26 Note: The ACMA may be taken to have given a notice under
27 subclause (3)—see clause 51.

28 14 After paragraph 47(1)(a) of Schedule 5


29 Insert:
30 (aa) the standard access-prevention notice was given under
31 paragraph 40(1)(c) of this Schedule; and

32 15 After subparagraph 51(1)(b)(i) of Schedule 5


33 Insert:
34 (ia) given each Internet service provider a standard
35 access-prevention notice under paragraph 40(1B)(b) of
36 this Schedule;
1 16 Subparagraph 51(1)(b)(ii) of Schedule 5
2 Omit “or 45”, substitute “, 45 or 45A”.

3 17 Subparagraph 51(1)(b)(ii) of Schedule 5


4 Omit “or 45(2)”, substitute “, 45(2) or 45A(3)”.

5 18 After subclause 51(3) of Schedule 5


6 Insert:
7 (3A) Paragraph 40(1B)(b) of this Schedule has effect, in relation to a
8 scheme under subclause (1), as if the reference in that paragraph to
9 each Internet service provider known to the ACMA were a
10 reference to each Internet service provider.

11 19 At the end of Division 4 of Part 4 of Schedule 5


12 Add:

13 51A Guidelines relating to the powers of the AFP Commissioner to


14 notify crime or terrorism related content
15 (1) In exercising a power conferred on the AFP Commissioner by
16 subclause 40(1A), the AFP Commissioner must have regard to any
17 relevant guidelines in force under subclause (2).
18 (2) The Attorney-General may, by legislative instrument, formulate
19 guidelines for the purposes of subclause (1).
20 (3) The AFP Commissioner must not exercise a power conferred by
21 subclause 40(1A) unless guidelines are in force under subclause (2)
22 of this clause.

23 51B Delegation by the AFP Commissioner


24 (1) The AFP Commissioner may, in writing, delegate to:
25 (a) a Deputy Commissioner (within the meaning of the
26 Australian Federal Police Act 1979); or
27 (b) a senior executive AFP employee (within the meaning of that
28 Act);
29 all or any of the powers of the AFP Commissioner under this
30 Division.
1 (2) In exercising powers under a delegation, the delegate must comply
2 with any directions of the AFP Commissioner.

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


4 After “40(1)(b)”, insert “or (1B)(a)”.

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


6 Add:
7 ; and (k) in a case where:
8 (i) the code relates to the Internet service provider section
9 of the Internet industry; and
10 (ii) the code deals with a matter set out in subclause 60(2);
11 and
12 (iii) the copy of the code was given to the ACMA before the
13 commencement of the amendment of subclause 60(2)
14 made by the Communications Legislation Amendment
15 (Crime or Terrorism Related Internet Content) Act
16 2007;
17 the code will, after that commencement, be consistent with
18 subclause 60(2) as amended by that Act.

19 22 Transitional—industry codes and industry standards


20 (1) This item applies to:
21 (a) an industry code registered under Part 5 of Schedule 5 to the
22 Broadcasting Services Act 1992; or
23 (b) an industry standard under that Part;
24 if:
25 (c) the code or standard was in force immediately before the
26 commencement of this item; and
27 (d) the code or standard, as in force immediately after the
28 commencement of this item, does not comply with clause 60
29 to Schedule 5 to the Broadcasting Services Act 1992 as
30 amended by this Schedule.
31 (2) The amendments of clause 60 of Schedule 5 to the Broadcasting
32 Services Act 1992 made by this Schedule do not affect the continuity of
33 the code or standard.
1 (3) However, the Parliament intends that the ACMA should, within 90 days
2 after the commencement of this item, take action under Schedule 5 to
3 the Broadcasting Services Act 1992 directed towards ensuring
4 compliance with clause 60 of that Schedule as amended by this
5 Schedule.