Broadcasting Services Amendment (Online Services) Bill 1999

This bill was introduced into the Senate on 21 April 1999 by the Parliamentary Secretary to the Minister for Communications, Information Technology and the Arts. [Portfolio responsibility: Communications, Information Technology and the Arts]

The bill proposes to amend the Broadcasting Services Act 1992 to provide for the regulation of online services by:

• establishing a complaints mechanism to enable complaints to be made to the Australian Broadcasting Authority (ABA) about offensive material online;
• defining material that will trigger action by the ABA, on the basis of current National Classification Board guidelines for film, as material Refused Classification and rated X, and material rated R that is not protected by adult verification procedures;
• giving powers to the ABA to issue notices to service providers aimed at preventing access to prohibited material which is subject to a complaint if it is hosted in Australia or, if the material is sourced overseas, to take reasonable steps to prevent access if technically feasible;
• providing indemnities for service providers to protect them from litigation by customers affected by ABA notices;
• providing a graduated scale of sanctions against service providers breaching ABA notices or the legislation;
• providing that the framework will not apply to private or restricted distribution communications such as e-mail (subject to the ability of the Minister to declare that a specified person who supplies, or proposes to supply, a specified Internet carriage service is an Internet service provider) – however, current provisions of the Crimes Act 1914 (Cth) in relation to offensive or harassing use of a telecommunications service will apply in this context;
• establishing a community advisory body to monitor material, operate a `hotline' to receive complaints about illegal material and pass relevant information to the ABA and police authorities, and also advise the public about options such as filtering software that are available to address concerns about online content;
• giving the Commonwealth responsibility for regulating the activities of Internet service providers and Internet content hosts, and providing that the Attorney-General is to encourage the development of uniform State and Territory offence provisions complementing the Commonwealth legislation that creates offences for the publication and transmission of proscribed material by users and content creators; and

makes a consequential amendment to the Crimes Act 1914.

Non-disallowable instruments

Clause 3 of Schedule 5

Item 10 of Schedule 1 to this bill proposes to add a new Schedule 5 to the Broadcasting Services Act 1992. This Schedule sets up a system for regulating certain aspects of the Internet industry.

Clause 3 of proposed Schedule 5 will permit the ABA to declare that “a specified access-control system is a restricted access system in relation to Internet content”. In making such a declaration, the ABA must have regard to the objective of protecting children from exposure to Internet content which is unsuitable for children, and such other matters (if any) as the ABA considers relevant.

Subclause 3(3) states that a copy of any such instrument must be laid before each House of the Parliament within 15 days after the date on which the instrument was made. No provision seems to have been made for the possible disallowance of such instruments. The Committee, therefore, seeks the Minister's advice as to whether instruments made under clause 3 of Schedule 5 of the Broadcasting Services Act 1992 are disallowable, and, if not, why they should be exempt from disallowance.

Pending the Minister's response, the Committee draws Senators' attention to the provision, as it may be considered to insufficiently subject the exercise of legislative power to parliamentary scrutiny, in breach of principle 1(a)(v) of the Committee's terms of reference.

Copyright Amendment (Computer Programs) Bill 1999

This bill was introduced into the Senate on 21 April 1999 by the Parliamentary Secretary to the Minister for Communications, Information Technology and the Arts. [Portfolio responsibility: Attorney-General]

The bill proposes to amend the Copyright Act 1968 to add a new Division which deals with exceptions to the infringement of copyright in computer programs. As a result, copyright in a computer program is not infringed if a copy is made in the course of:

• running the program for normal use – subject to the conditions of the licence accompanying the program when bought;
• studying the operation of and ideas behind the program while running it;
• periodically backing up the data on a computer system or network for security;
• finding out how the program interoperates with other programs so as to make a new program to interoperate with any or all of those programs;
• correcting an error (including the Y2K bug) in the program; and
• security testing and correcting a security flaw in the program, or a network.

The Committee has no comment on this bill.

Migration Legislation Amendment (Temporary Safe Haven Visas) Bill 1999

This bill was introduced into the Senate on 21 April 1999 by the Parliamentary Secretary to the Minister for Communications, Information Technology and the Arts. [Portfolio responsibility: Immigration and Multicultural Affairs]

Consistent with the Government's commitment to provide temporary safe haven for 4000 persons displaced from their homes in Kosovo, the bill proposes to provide a legislative framework for the Australian Government to provide temporary safe haven in Australia. The bill seeks to ensure that persons to whom temporary safe haven is provided are unable to change their status to remain in Australia after temporary safe haven is no longer necessary.

Rights and non-reviewable decisions

Schedule 1, items 3, 7, 10, 11, 12 and 13

A number of the provisions of this bill seem to come within the Committee's terms of reference. For example, item 3 of Schedule 1 proposes to insert a new section 37A in the Principal Act. This section creates a new visa category of temporary safe haven visas. Under proposed subsection 37A(2), the Minister may extend the period of a temporary safe haven visa. Under proposed subsection 37A(5), the Minister is not obliged to consider whether to exercise this power. Similarly, under proposed subsection 91L(6), the Minister is not obliged to consider whether to exercise his or her power to permit a holder of a temporary safe haven visa to apply for another type of visa.

By virtue of items 10, 11, 12 and 13 of Schedule 1, a number of the Minister's decisions concerning temporary safe haven visas are not reviewable by any Tribunal or court other than the High Court.

Finally, item 14 of Schedule 1 proposes to insert a new section 500A in the Principal Act. This deals with refusals or cancellations of temporary safe haven visas. By virtue of proposed subsection 500A(11), the Minister is not bound by the rules of natural justice should he or she either refuse to grant, or cancel, such a visa. The Second Reading Speech notes that, as temporary safe haven is to be provided to persons at short notice and in situations where extensive character-checking is not possible, “it is necessary to have effective powers to withdraw temporary safe haven which has been provided to any person who represents a danger to the Australian community, or Australia's security or whose presence in Australia would be harmful to Australia's international relations”.

Such provisions are usually of concern to the Committee. However, the Committee notes that they represent aspects of policy in relation to the type of visa provided for in this bill. Such policy matters are best left for resolution by the Senate as a whole.

The Committee draws Senators' attention to the provisions, as they may be considered to trespass unduly on personal rights and liberties, in breach of principle 1(a)(i) of the Committee's terms of reference, and make rights liberties or obligations unduly dependent on non-reviewable decisions, in breach of principle 1(a)(ii) of the Committee's terms of reference.