1Short title
This Act is the Online Safety Act 2021.
Parliamentary material from APH and the Federal Register of Legislation. Links open the official source in a new tab.
Bill homepage (APH)This Act is the Online Safety Act 2021.
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 | A single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. | 23 January 2022 |
This table relates only to the provisions of this Act as originally enacted.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.
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.
The objects of this Act are:
to improve online safety for Australians; and
to promote online safety for Australians.
• There is to be an eSafety Commissioner.
• The functions of the Commissioner include:
promoting online safety for Australians; and
administering a complaints system for cyber‑bullying material targeted at an Australian child; and
administering a complaints system for cyber‑abuse material targeted at an Australian adult; and
administering a complaints and objections system for non‑consensual sharing of intimate images; and
administering the online content scheme; and
coordinating activities of Commonwealth Departments, authorities and agencies relating to online safety for Australians.
• The complaints system for cyber‑bullying material targeted at an Australian child includes the following components:
the provider of a social media service, a relevant electronic service or a designated internet service may be given a notice (a removal notice) requiring the removal from the service of cyber‑bullying material targeted at an Australian child;
a hosting service provider who hosts cyber‑bullying material targeted at an Australian child may be given a notice (a removal notice) requiring the provider to cease hosting the material;
a person who posts cyber‑bullying material targeted at an Australian child may be given a notice (an end‑user notice) requiring the person to remove the material, refrain from posting cyber‑bullying material or apologise for posting the material.
• The complaints system for cyber‑abuse material targeted at an Australian adult includes the following components:
the provider of a social media service, a relevant electronic service or a designated internet service may be given a notice (a removal notice) requiring the removal from the service of cyber‑abuse material targeted at an Australian adult;
a person who posts cyber‑abuse material targeted at an Australian adult may be given a notice (a removal notice) requiring the person to remove the material;
a hosting service provider who hosts cyber‑abuse material targeted at an Australian adult may be given a notice (a removal notice) requiring the provider to cease hosting the material.
• The complaints and objections system for non‑consensual sharing of intimate images includes the following components:
a person who posts, or threatens to post, an intimate image may be liable to a civil penalty;
the provider of a social media service, relevant electronic service or designated internet service may be given a notice (a removal notice) requiring the provider to remove an intimate image from the service;
an end‑user of a social media service, relevant electronic service or designated internet service who posts an intimate image on the service may be given a notice (a removal notice) requiring the end‑user to remove the image from the service;
a hosting service provider who hosts an intimate image may be given a notice (a removal notice) requiring the provider to cease hosting the image.
• The online content scheme includes the following components:
the provider of a social media service, relevant electronic service or designated internet service may be given a notice (a removal notice) requiring the provider to remove certain material;
a hosting service provider may be given a notice (a removal notice) requiring the provider to cease hosting certain material;
the provider of an internet search engine service may be given a notice (a link deletion notice) requiring the provider to cease providing a link to certain material;
the provider of an app distribution service may be given a notice (an app removal notice) requiring the provider to cease enabling end‑users to download an app that facilitates the posting of certain material on a social media service, relevant electronic service or designated internet service;
bodies and associations that represent sections of the online industry may develop industry codes;
the Commissioner may make an industry standard;
the Commissioner may make service provider determinations regulating service providers in the online industry.
• The Minister may determine basic online safety expectations for social media services, relevant electronic services and designated internet services.
• An internet service provider may be requested or required to block access to:
material that promotes abhorrent violent conduct; or
material that incites abhorrent violent conduct; or
material that instructs in abhorrent violent conduct; or
material that depicts abhorrent violent conduct.
• There are age restrictions for certain social media platforms. A provider of such a platform must take reasonable steps to prevent children who have not reached a minimum age from having accounts.
In this Act:
abhorrent violent conduct has the same meaning as in Subdivision H of Division 474 of the Criminal Code.
access includes:
access that is subject to a pre‑condition (for example, the use of a password); and
access by way of push technology; and
access by way of a standing request.
access‑control system, in relation to material, means a system under which:
persons seeking access to the material have a password, or a Personal Identification Number, that provides a means of limiting access by other persons to the material; or
persons seeking access to the material have been provided with some other means of limiting access by other persons to the material.
account includes:
a free account; and
a pre‑paid account; and
anything that may reasonably be regarded as the equivalent of an account.
ACMA means the Australian Communications and Media Authority.
adult means an individual who is 18 or older.
age‑restricted social media platform has the meaning given by section 63C.
age‑restricted user means an Australian child who has not reached 16 years.
app includes a computer program.
app distribution service means a service that enables end‑users to download apps, where the download of the apps is by means of a carriage service.
app removal notice means a notice given under section 128.
Appropriation Act means an Act appropriating money for expenditure out of the Consolidated Revenue Fund.
Australia, when used in a geographical sense, includes all the external Territories.
Australian adult means an adult who is ordinarily resident in Australia.
Australian child means a child who is ordinarily resident in Australia.
Australian hosting service provider means a person who provides a hosting service that involves hosting material in Australia.
Australian police force means:
the Australian Federal Police; or
the police force of a State or Territory.
Australians means individuals who are ordinarily resident in Australia.
basic online safety expectations has the meaning given by section 45.
blocking notice means a notice under section 99.
blocking request means a request under section 95.
broadcasting service has the same meaning as in the Broadcasting Services Act 1992.
carriage service has the same meaning as in the Telecommunications Act 1997.
child means an individual who has not reached 18 years.
civil proceeding includes a civil action.
class 1 material has the meaning given by section 106.
class 2 material has the meaning given by section 107.
Classification Board means the Classification Board established by the Classification (Publications, Films and Computer Games) Act 1995.
Commissioner means the eSafety Commissioner.
See section 26.
computer game has the same meaning as in the Classification (Publications, Films and Computer Games) Act 1995.
consent, when used in relation to an intimate image or private sexual material, has the meaning given by section 21.
Convention on the Rights of the Child means the Convention on the Rights of the Child done at New York on 20 November 1989.
The Convention is in Australian Treaty Series 1991 No. 4 ([1991] ATS 4) and could in 2021 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
court/tribunal proceedings means words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a court or a tribunal, and includes:
evidence given before the court or tribunal; and
a document presented or submitted to the court or tribunal; and
a document issued or published by, or with the authority of, the court or tribunal.
cyber‑abuse material targeted at an Australian adult has the meaning given by section 7.
cyber‑bullying material targeted at an Australian child has the meaning given by section 6.
data storage device means any article or material (for example, a disk or file server) from which information is capable of being reproduced, with or without the aid of any other article or device.
de‑identified: information is de‑identified if the information is no longer about:
an identifiable individual; or
an individual who is reasonably identifiable.
designated internet service has the meaning given by section 14.
electronic message has the same meaning as in the Spam Act 2003.
electronic service means:
a service that allows end‑users to access material using a carriage service; or
a service that delivers material to persons having equipment appropriate for receiving that material, where the delivery of the service is by means of a carriage service;
but does not include:
a broadcasting service; or
a datacasting service (within the meaning of the Broadcasting Services Act 1992).
end‑user notice means a notice under subsection 70(1).
engage in conduct means:
do an act; or
omit to perform an act.
exempt court/tribunal content service means a service to the extent to which it delivers, or provides access to, material that consists of court/tribunal proceedings.
exempt official‑inquiry content service means a service to the extent to which it delivers, or provides access to, material that consists of official‑inquiry proceedings.
exempt Parliamentary content service means a service to the extent to which it delivers, or provides access to, material that consists of Parliamentary proceedings.
exempt provision of an intimate image has the meaning given by section 86.
Federal Court means the Federal Court of Australia.
film has the same meaning as in the Classification (Publications, Films and Computer Games) Act 1995.
hosting service has the meaning given by section 17.
hosting service provider means a person who provides a hosting service.
immediate circle has the same meaning as in the Telecommunications Act 1997.
internet carriage service means a listed carriage service that enables end‑users to access the internet.
internet service provider has the meaning given by section 19.
intimate image has the meaning given by section 15.
legislative rules means rules made under section 240.
link deletion notice means a notice given under section 124.
listed carriage service has the same meaning as in the Telecommunications Act 1997.
material means material:
whether in the form of text; or
whether in the form of data; or
whether in the form of speech, music or other sounds; or
whether in the form of visual images (moving or otherwise); or
whether in any other form; or
whether in any combination of forms.
material that depicts abhorrent violent conduct has the meaning given by section 9.
National Classification Code means the Code (within the meaning of the Classification (Publications, Films and Computer Games) Act 1995).
non‑consensual intimate image of a person has the meaning given by section 16.
objection notice means a notice under section 33.
official‑inquiry proceedings means words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of:
a Royal Commission; or
an official inquiry;
and includes:
evidence given before the Royal Commission or official inquiry; and
a document presented or submitted to the Royal Commission or official inquiry; and
a document issued or published by, or with the authority of, the Royal Commission or official inquiry.
on‑demand program service has the meaning given by section 18.
online safety for Australians means the capacity of Australians to use social media services and electronic services in a safe manner.
online safety for children means the capacity of Australian children to use social media services and electronic services in a safe manner, and includes the protection of Australian children using those services from cyber‑bullying material targeted at an Australian child.
Online Safety Special Account means the Online Safety Special Account referred to in section 190.
parent: without limiting who is a parent of anyone for the purposes of this Act, a person is the parent of another person if the other person is a child of the person within the meaning of the Family Law Act 1975.
Parliamentary proceedings means words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of:
a Parliament; or
a legislature; or
a committee of a Parliament or legislature;
and includes:
evidence given before the Parliament, legislature or committee; and
a document presented or submitted to the Parliament, legislature or committee; and
a document issued or published by, or with the authority of, the Parliament, legislature or committee.
point‑to‑multipoint service means a carriage service which allows a person to transmit material to more than one end‑user simultaneously.
posted by an end‑user of a social media service, relevant electronic service or designated internet service has the meaning given by section 11.
Other parts of speech and grammatical forms of “posted” (for example, “post”) have a corresponding meaning (see section 18A of the Acts Interpretation Act 1901).
private sexual material means:
material that:
depicts a person who is, or appears to be, 18 years of age or older and who is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); and
does so in circumstances that reasonable persons would regard as giving rise to an expectation of privacy; or
material the dominant characteristic of which is the depiction of:
a sexual organ or the anal region of a person who is, or appears to be, 18 years of age or older; or
if a person is a female person, or a transgender or intersex person, who is, or appears to be, 18 years of age or older—either or both of the person’s breasts;
where the depiction is in circumstances that reasonable persons would regard as giving rise to an expectation of privacy.
provided on a social media service, relevant electronic service or designated internet service has the meaning given by section 10.
provider of a social media service, age‑restricted social media platform, relevant electronic service, designated internet service or app distribution service has a meaning affected by section 238.
publication has the same meaning as in the Classification (Publications, Films and Computer Games) Act 1995. Despite section 18A of the Acts Interpretation Act 1901, this definition does not affect the meaning of the expressions publish or published when used in this Act.
relevant electronic service has the meaning given by section 13A.
remedial notice means a notice given under section 119 or 120.
removal notice means a notice under:
section 65; or
section 66; or
section 77; or
section 78; or
section 79; or
section 88; or
section 89; or
section 90; or
section 109; or
section 110; or
section 114; or
section 115.
removed from a social media service, relevant electronic service or designated internet service has the meaning given by section 12.
restricted access system has the meaning given by section 108.
Secretary means the Secretary of the Department.
serious harm means serious physical harm or serious harm to a person’s mental health, whether temporary or permanent.
serious harm to a person’s mental health includes:
serious psychological harm; and
serious distress;
but does not include mere ordinary emotional reactions such as those of only distress, grief, fear or anger.
service includes a website.
service provider determination means a determination under section 151.
service provider rule means each of the rules (if any) set out in a service provider determination.
social media service has the meaning given by section 13.
stored material means material kept on a data storage device. For this purpose, disregard any storage of material on a highly transitory basis as an integral function of the technology used in its transmission.
Momentary buffering (including momentary storage in a router in order to resolve a path for further transmission) is an example of storage on a highly transitory basis.
target of cyber‑abuse material has the meaning given by section 7.
target of cyber‑bullying material has the meaning given by section 6.
terms of use includes anything that may be reasonably regarded as the equivalent of terms of use.
threat includes a threat made by any conduct, whether express or implied and whether conditional or unconditional.
use has a meaning affected by section 239.
For the purposes of this Act, if material satisfies the following conditions:
the material is provided on:
a social media service; or
a relevant electronic service; or
a designated internet service;
an ordinary reasonable person would conclude that:
it is likely that the material was intended to have an effect on a particular Australian child; and
the material would be likely to have the effect on the Australian child of seriously threatening, seriously intimidating, seriously harassing or seriously humiliating the Australian child;
such other conditions (if any) as are set out in the legislative rules;
then:
the material is cyber‑bullying material targeted at the Australian child; and
the Australian child is the target of the material.
An effect mentioned in subsection (1) may be:
a direct result of the material being accessed by, or delivered to, the Australian child; or
an indirect result of the material being accessed by, or delivered to, one or more other persons.
Subsection (1) has effect subject to subsection (4).
For the purposes of this Act, if:
a person is:
in a position of authority over an Australian child; and
an end‑user of a social media service, relevant electronic service or designated internet service; and
in the lawful exercise of that authority, the person posts material on the service; and
the posting of the material is reasonable action taken in a reasonable manner;
the material is taken not to be cyber‑bullying material targeted at the Australian child.
For the purposes of this Act, if material satisfies the following conditions:
the material is provided on:
a social media service; or
a relevant electronic service; or
a designated internet service;
an ordinary reasonable person would conclude that it is likely that the material was intended to have an effect of causing serious harm to a particular Australian adult;
an ordinary reasonable person in the position of the Australian adult would regard the material as being, in all the circumstances, menacing, harassing or offensive;
such other conditions (if any) as are set out in the legislative rules;
then:
the material is cyber‑abuse material targeted at the Australian adult; and
the Australian adult is the target of the material.
For serious harm, see section 5.
An effect mentioned in paragraph (1)(b) may be:
a direct result of the material being accessed by, or delivered to, the Australian adult; or
an indirect result of the material being accessed by, or delivered to, one or more other persons.
The matters to be taken into account in deciding for the purposes of this Act whether an ordinary reasonable person in the position of a particular Australian adult would regard particular material as being, in all the circumstances, offensive, include:
the standards of morality, decency and propriety generally accepted by reasonable adults; and
the literary, artistic or educational merit (if any) of the material; and
the general character of the material (including whether it is of a medical, legal or scientific character).
If:
material is provided on:
a social media service; or
a relevant electronic service; or
a designated internet service; and
the material is private sexual material;
then, in deciding for the purposes of this Act whether an ordinary reasonable person in the position of a particular Australian adult would regard the material as being, in all the circumstances, offensive, regard must be had to whether the subject, or each of the subjects, of the private sexual material gave consent to the material being provided on the service.
Subsection (2) does not limit subsection (1).
For the purposes of this Act, material that depicts abhorrent violent conduct means material that is:
audio material; or
visual material; or
audio‑visual material;
that records or streams abhorrent violent conduct.
For the purposes of subsection (1), it is immaterial whether the material has been altered.
For the purposes of this Act, material is provided on a social media service, relevant electronic service or designated internet service if the material is accessible to, or delivered to, one or more of the end‑users using the service.
For the purposes of this Act, material is posted on a social media service, relevant electronic service or designated internet service by an end‑user if the end‑user causes the material to be accessible to, or delivered to, one or more other end‑users using the service.
For the purposes of this Act, material is removed from a social media service, relevant electronic service or designated internet service if the material is neither accessible to, nor delivered to, any of the end‑users in Australia using the service.
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