29 Statutory Review of the Online Safety Act 2021 2 About the Law Council of Australia The Law Council of Australia represents the legal profession at the national level; speaks on behalf of its Constituent Bodies on federal, national, and international issues; promotes and defends the rule of law; and promotes the administration of justice, access to justice and general improvement of the law. [...] Currently, age-assurance protections within the Act are achieved through the Online Content Scheme, the Restricted Access System, and the Basic Online Safety Expectations.43 Further, the Commissioner, where appropriate, is to have regard to the Convention on the Rights of the Child in performing functions conferred by, or under, the Act, and in relation to children residing in Australia.44 54. [...] The process in the Federal Court requires the filing of a ‘Request for Enforcement’ and, when granted, the applicant (in this instance, the Commonwealth) would then utilise the enforcement procedures of the Supreme Court of the jurisdiction where the order was made. [...] The Law Council expects that the intention of the Issues Paper is to include under this umbrella term those ‘online services’ that are subject to the Basic Online Safety Expectations pursuant to section 45 of the Act,77 and/or those ‘online services’ that are subject to the Online Content Scheme, administered by the Commission under Part 9 of the Act.78 83. [...] Statutory Review of the Online Safety Act 2021 27 (c) the restriction is proportionate to the legitimate aim, and is the least intrusive measure available to achieve the desired result.101 Therefore, any limitation in the Act on the right to freedom of expression—as with the limitation on any fundamental right—would require clear legislative intent.
Authors
- Pages
- 30
- Published in
- Australia
Table of Contents
- Table of contents 2
- About the Law Council of Australia ................................................................................. 3 2
- Acknowledgements ........................................................................................................... 4 2
- Introduction ........................................................................................................................ 5 2
- General comments ............................................................................................................ 5 2
- Discussion questions ...................................................................................................... 12 2
- About the Law Council of Australia 3
- Acknowledgements 4
- Introduction 5
- Review Commissioner 5
- Online Safety Act 2021 5
- General comments 5
- Consistency of approach 5
- Privacy 6
- Privacy Act 1988 6
- Artificial Intelligence 7
- International operation 7
- The impacts of overregulation 7
- The result is that the reasonable steps required by a removal notice issued under s 109 do not include the steps which the Commissioner seeks to compel X Corp to take in the present case 8
- Online safety and digital inclusion for First Nations peoples 9
- Education and resourcing 11
- Discussion questions 12
- Part 2 Australias regulatory approach to online services systems and processes 12
- Question 1 Are the current objects of the Act to improve and promote online safety for Australians sufficient or should they be expanded 12
- Question 5 Should the Act have strengthened and enforceable Basic Online Safety Expectations 12
- Part 3 Protecting those who have experienced or encountered online harms 13
- Question 8 Are the thresholds that are set for each complaints scheme appropriate 13
- Question 10 Does more need to be done to make sure vulnerable Australians at the highest risk of abuse have access to corrective action through the Act 14
- LIV 14
- UK UK Act 14
- Online Safety Act 2023 14
- Racial Discrimination Act 1975 15
- Online Safety and Media Regulation Act 2022 15
- Irish Act 15
- ICCPR 15
- Question 12 What role should the Act play in helping to restrict childrens access to age-inappropriate content including through the application of age assurance 15
- Australias Age-Assurance Pilot 16
- Roadmap for age verification and complementary measures to prevent and mitigate harms to children from online pornography 16
- VPN 16
- Part 4 Penalties and investigation and information gathering powers 17
- Question 17 Does the Act need stronger investigation information gathering and enforcement powers 17
- Question 18 Are Australias penalties adequate and if not what forms should they take 18
- Civil penalties and infringement notices 18
- Suspension of services 19
- Digital Services Act 2022 19
- Questions 19 and 20 20
- What more could be done to enforce action against service providers who do not comply especially those based overseas 20
- Should the Commissioner have powers to impose sanctions such as business disruption sanctions 20
- Regulatory Powers Standard Provisions Act 2014 20
- Regulatory Powers Act 20
- Part 5 International approaches to address online harms 21
- Question 22 Should Australia place additional statutory duties on online services to make online services safer and minimise online harms 21
- LS NSW LS SA 22
- Limitations of the current approach 22
- Preferred model 23
- International standards on business and human rights 23
- Guiding Principles OECD Guidelines 23
- Question 23 Is the current level of transparency around decision-making by industry and the Commissioner appropriate If not what improvements are needed 24
- Digital Services Act 2022 24
- ACCC 25
- Question 26 Are additional safeguards needed to ensure the Act upholds fundamental human rights and supporting principles 26
- UDHR ICESCR 27
- Freedom of expression 27
- Federal human rights legislative framework 28
- PJCHR 28
- Plan of Action 28
- Part 6 Regulating the online environment technology and environmental changes 29
- Question 28 What considerations are important in balancing innovation privacy security and safety 29
