Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Act 2018

No. 96, 2018

Compilation No. 1

Compilation date: 23 January 2022

Includes amendments up to: Act No. 77, 2021

Registered: 10 February 2022

About this compilation

This compilation

This is a compilation of the Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Act 2018 that shows the text of the law as amended and in force on 23 January 2022 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self - repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

Contents

1 Short title 2

2 Commencement 2

3 Schedules 2

Schedule 1—Amendments 3

Broadcasting Services Act 1992 3

Enhancing Online Safety Act 2015 3

Schedule 2—Amendment of the Criminal Code Act 1995 30

Criminal Code Act 1995 30

Endnotes 36

Endnote 1—About the endnotes 36

Endnote 2—Abbreviation key 38

Endnote 3—Legislation history 39

Endnote 4—Amendment history 40

An Act to amend the Enhancing Online Safety Act 2015, and for other purposes
1 Short title

This Act is the Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Act 2018.
2 Commencement 1

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 Commencement information Commencement information
Column 1 Column 2 Column 3
Provisions Commencement Date/Details
1. The whole of this Act The day after this Act receives the Royal Assent. 1 September 2018

Note: 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.

 2

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.
3 Schedules

Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Amendments

Broadcasting Services Act 1992

 1 After paragraph 169A(a)

Insert:

Enhancing Online Safety Act 2015

 aa

(aa) Enhancing Online Safety Act 2015; orsection 19C of the

2 Section 3

After:

insert:

 b

administering a complaints system for cyber-bullying material targeted at an Australian child; and

 ba

administering a complaints and objections system for non-consensual sharing of intimate images; and

 3 At the end of section 3

Add:

• The complaints and objections system for non-consensual sharing of intimate images includes the following components:

 a

a person who posts, or threatens to post, an intimate image may be liable to a civil penalty;

 b

(b) 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;

 c

(c) 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;

 d

(d) 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.

 4 Section 4

Insert:

consent, when used in relation to an intimate image, has the meaning given by section 9E.

data storage device means any article or material (for example, a disk) from which information is capable of being reproduced, with or without the aid of any other article or device.

designated internet service has the meaning given by section 9A.

exempt post, when used in relation to an intimate image, has the meaning given by section 44M.

hosting service has the meaning given by section 9C.

hosting service provider means a person who provides a hosting service.

internet carriage service has the same meaning as in Schedule 5 to the Broadcasting Services Act 1992.

intimate image has the meaning given by section 9B.

objection notice means a notice under section 19B.

on-demand program service has the meaning given by section 9D.

 5 Section 4 (definition of posted)

Omit “or relevant electronic service”, substitute “, relevant electronic service or designated internet service”.

 6 Section 4 (at the end of the definition of posted)

Add:

Note: Other parts of speech and grammatical forms of “posted” (for example, “post”) have a corresponding meaning (see Acts Interpretation Act 1901).section 18A of the

7 Section 4 (definition of provided)

Omit “or relevant electronic service”, substitute “, relevant electronic service or designated internet service”.

 8 Section 4 (definition of provider)

Omit “or relevant electronic service”, substitute “, relevant electronic service or designated internet service”.

 9 Section 4

Insert:

removal notice means a notice under section 44D, 44E or 44F.

 10 Section 4 (definition of removed)

Omit “or relevant electronic service”, substitute “, relevant electronic service or designated internet service”.

 11 Section 4

Insert:

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.

Note: 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.

threat includes a threat made by any conduct, whether express or implied and whether conditional or unconditional.

 12 Section 6 (heading)

Repeal the heading, substitute:

 6 When material is provided on a social media service, relevant electronic service or designated internet service 13 Section 6

Omit “or relevant electronic service”, substitute “, relevant electronic service or designated internet service”.

 14 Section 7 (heading)

Repeal the heading, substitute:

 7 When material is posted by an end-user of a social media service, relevant electronic service or designated internet service 15 Section 7

Omit “or relevant electronic service”, substitute “, relevant electronic service or designated internet service”.

 16 Section 8 (heading)

Repeal the heading, substitute:

 8 When material is removed from a social media service, relevant electronic service or designated internet service 17 Section 8

Omit “or relevant electronic service”, substitute “, relevant electronic service or designated internet service”.

 18 After section 9

Insert:

 9A Designated internet service 1

(1) For the purposes of this Act, designated internet service means:

 a

a service that allows end-users to access material using an internet carriage service; or

 b

a service that delivers material to persons having equipment appropriate for receiving that material, where the delivery of the service is by means of an internet carriage service;

but does not include:

 c

a social media service; or

 d

a relevant electronic service; or

 e

an on-demand program service; or

 f

a service specified under subsection (2).

 2

The Minister may, by legislative instrument, specify one or more services for the purposes of paragraph (1)(f).

 9B Intimate image 1

(1) This section sets out the circumstances in which material is an intimate image of a person for the purposes of this Act.

Depiction of private parts

in circumstances in which an ordinary reasonable person would reasonably expect to be afforded privacy.

Depiction of private activity

in circumstances in which an ordinary reasonable person would reasonably expect to be afforded privacy.

Depiction of person without attire of religious or cultural significance

Interpretative provisions

 2

(2) Material is an intimate image of a person if:

 a

the material consists of a still visual image or moving visual images; and

 b

the material depicts, or appears to depict:

 i

the person’s genital area or anal area (whether bare or covered by underwear); or

 ii

if the person is female or a transgender or intersex person identifying as female—either or both of the person’s breasts;

 3

(3) Material is an intimate image of a person if:

 a

the material consists of a still visual image or moving visual images; and

 b

the material depicts, or appears to depict, the person:

 i

in a state of undress; or

 ii

using the toilet; or

 iii

showering; or

 iv

having a bath; or

 v

engaged in a sexual act of a kind not ordinarily done in public; or

 vi

engaged in any other like activity;

 4

(4) Material is an intimate image of a person if:

 a

the material consists of a still visual image or moving visual images; and

 b

because of the person’s religious or cultural background, the person consistently wears particular attire of religious or cultural significance whenever the person is in public; and

 c

the material depicts, or appears to depict, the person:

 i

without that attire; and

 ii

in circumstances in which an ordinary reasonable person would reasonably expect to be afforded privacy.

 5

For the purposes of this section, it is immaterial whether material has been altered.

 6

For the purposes of this section, if material depicts, or appears to depict, a part of the body of a person, the material is taken to depict the person, or to appear to depict the person, as the case requires.

 9C Hosting service

For the purposes of this Act, if:

on which the hosted material is provided;

the hosting of the stored material by the first person is taken to be the provision by the first person of a hosting service.

 a

(a) a person (the first person) hosts stored material that has been posted on:

 i

a social media service; or

 ii

a relevant electronic service; or

 iii

a designated internet service; and

 b

the first person or another person provides:

 i

a social media service; or

 ii

a relevant electronic service; or

 iii

a designated internet service;

 9D On-demand program service 1

(1) For the purposes of this Act, on-demand program service means a service:

 a

that is provided to end-users using an internet carriage service; and

 b

to the extent to which the service provides material that is identical to a program that has been, or is being, transmitted on:

 i

a commercial television broadcasting service provided under a commercial television broadcasting licence; or

 ii

a subscription television broadcasting service provided under a subscription television broadcasting licence; or

 iii

a subscription television narrowcasting service; or

 iv

a television broadcasting service provided by the Australian Broadcasting Corporation; or

 v

a television broadcasting service provided by the Special Broadcasting Service Corporation.

 2

(2) For the purposes of subsection (1), in determining whether material is identical to a program, disregard any differences that are attributable to the technical characteristics of the provision or transmission (for example, video resolution or sound quality).

 3

For the purposes of subsection (1), in determining whether material is identical to a program, disregard the presence or absence of:

 a

a watermark-type logo; or

 b

a watermark-type insignia.

 4

(4) An expression used in paragraph (1)(b) has the same meaning in that paragraph as it has in the Broadcasting Services Act 1992.

 9E Consent

For the purposes of the application of this Act to an intimate image, consent means consent that is:

but does not include:

 a

express; and

 b

voluntary; and

 c

informed;

 d

consent given by a child; or

 e

consent given by an adult who is in a mental or physical condition (whether temporary or permanent) that:

 i

makes the adult incapable of giving consent; or

 ii

substantially impairs the capacity of the adult to give consent.

 19 Section 13

After:

insert:

 b

administering a complaints system for cyber-bullying material targeted at an Australian child; and

 ba

administering a complaints and objections system for non-consensual sharing of intimate images; and

 20 Part 3 (heading)

Repeal the heading, substitute:

 21 Before section 17

Insert:

 22 At the end of section 17

Add:

• There is a complaints and objections system for non-consensual sharing of intimate images.

 23 Before section 18

Insert:

 24 At the end of Part 3

Add:

 19A Complaints

Complaint made by a person depicted in an intimate image

Complaint made on behalf of a person depicted in an intimate image

 1

If a person has reason to believe that the Commissioner about the matter.section 44B has been contravened in relation to an intimate image of the person, the person may make a complaint to

2

If the complainant is not able to identify the person who allegedly contravened the Commissioner to that effect.section 44B, the complainant must make a statement to

3

(3) If a person (the authorised person) has reason to believe that section 44B has been contravened in relation to an intimate image of another person (the depicted person), the authorised person may, on behalf of the depicted person, make a complaint to the Commissioner about the matter, so long as:

 a

the depicted person has authorised the authorised person to make a complaint about the matter; or

 b

both:

 i

the depicted person is a child who has not reached 16 years; and

 ii

the authorised person is a parent or guardian of the depicted person; or

 c

both:

 i

the depicted person is in a mental or physical condition (whether temporary or permanent) that makes the depicted person incapable of managing his or her affairs; and

 ii

the authorised person is a parent or guardian of the depicted person.

 4

The authorised person must make a declaration to the Commissioner to the effect that the authorised person is entitled to make the complaint on behalf of the depicted person.

 5

If the authorised person is not able to identify the person who allegedly contravened the Commissioner to that effect.section 44B, the authorised person must make a statement to

19B Objection notice

Objection notice given by a person depicted in an intimate image

the depicted person may give the Commissioner a notice (an objection notice) objecting to the provision of the intimate image on the service.

Objection notice given on behalf of a person depicted in an intimate image

the authorised person may, on behalf of the depicted person, give the Commissioner a notice (an objection notice) objecting to the provision of the intimate image on the service, so long as:

Transitional

before the commencement of this section, this section does not apply to the intimate image unless the intimate image was provided on the service after the commencement of this section.

 1

(1) If a person (the depicted person) has reason to believe that:

 a

an intimate image of the depicted person is, or has been, provided on:

 i

a social media service; or

 ii

a relevant electronic service; or

 iii

a designated internet service; and

 b

the intimate image was posted on the service by an end-user of the service; and

 c

the posting of the intimate image on the service did not constitute an exempt post; and

 d

any of the following conditions is satisfied:

 i

the depicted person is ordinarily resident in Australia;

 ii

the end-user is ordinarily resident in Australia;

 iii

the intimate image is hosted in Australia by a hosting service;

 2

The depicted person may give the objection notice even if the depicted person consented to the posting of the intimate image on the service.

 3

(3) If a person (the authorised person) has reason to believe that:

 a

(a) an intimate image of another person (the depicted person) is, or has been, provided on:

 i

a social media service; or

 ii

a relevant electronic service; or

 iii

a designated internet service; and

 b

the intimate image was posted on the service by an end-user of the service; and

 c

the posting of the intimate image on the service did not constitute an exempt post; and

 d

any of the following conditions is satisfied:

 i

the depicted person is ordinarily resident in Australia;

 ii

the end-user is ordinarily resident in Australia;

 iii

the intimate image is hosted in Australia by a hosting service;

 e

the depicted person has authorised the authorised person to give the objection notice; or

 f

both:

 i

the depicted person is a child who has not reached 16 years; and

 ii

the authorised person is a parent or guardian of the depicted person; or

 g

both:

 i

the depicted person is in a mental or physical condition (whether temporary or permanent) that makes the depicted person incapable of managing his or her affairs; and

 ii

the authorised person is a parent or guardian of the depicted person.

 4

The authorised person must make a declaration to the Commissioner to the effect that the authorised person is entitled to give the objection notice on behalf of the depicted person.

 5

The authorised person may give the objection notice even if the depicted person consented to the posting of the intimate image on the service.

 6

If an intimate image was posted on:

 a

a social media service; or

 b

a relevant electronic service; or

 c

a designated internet service;

 19C Investigation of complaints 1

The Commissioner may investigate a complaint made to the Commissioner under section 19A.

 2

An investigation under this section is to be conducted as the Commissioner thinks fit.

 3

The Commissioner may, for the purposes of an investigation, obtain information from such persons, and make such inquiries, as he or she thinks fit.

 4

(4) Subsections (1), (2) and (3) have effect subject to Broadcasting Services Act 1992 (which confers certain investigative powers on the Commissioner).Part 13 of the

Termination of investigation

 5

The Commissioner may terminate an investigation under this section.

 19D Commissioner’s response to objection notices

If an objection notice is given to the Commissioner under section 19B in relation to an intimate image, the Commissioner may consider whether to give a removal notice in relation to the intimate image.

 25 Part 5 (heading)

Repeal the heading, substitute:

 26 After Part 5

Insert:

 44A Simplified outline of this Part

• A person who posts, or threatens to post, an intimate image without the consent of the person depicted in the 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.

 44B Posting an intimate image 1

(1) A person (the first person) must not post, or make a threat to post, an intimate image of another person (the second person) on:

 a

a social media service; or

 b

a relevant electronic service; or

 c

a designated internet service;

if:

Civil penalty: 500 penalty units.

Consent

Note: In proceedings for a civil penalty order against a person for a contravention of subsection (1), the person bears an evidential burden in relation to the matter in this subsection (see Regulatory Powers (Standard Provisions) Act 2014).section 96 of the

Depiction of second person without attire of religious or cultural significance

Note: In proceedings for a civil penalty order against a person for a contravention of subsection (1), the person bears an evidential burden in relation to the matter in this subsection (see Regulatory Powers (Standard Provisions) Act 2014).section 96 of the

Exempt post

Note: In proceedings for a civil penalty order against a person for a contravention of subsection (1), the person bears an evidential burden in relation to the matter in this subsection (see Regulatory Powers (Standard Provisions) Act 2014).section 96 of the

d

the first person is ordinarily resident in Australia; or

 e

the second person is ordinarily resident in Australia.

 2

Subsection (1) does not apply if the second person consented to the posting of the intimate image by the first person.

 3

Subsection (1) does not apply if:

 a

the intimate image is covered by subsection 9B(4) because it depicts, or appears to depict, the second person without particular attire of religious or cultural significance; and

 b

the first person did not know that, because of the second person’s religious or cultural background, the second person consistently wears that attire whenever the second person is in public.

 4

Subsection (1) does not apply if the post of the intimate image is, or would be, an exempt post.

 44C Formal warning

The Commissioner may issue a formal warning if a person contravenes section 44B.

 44D Removal notice given to the provider of a social media service, relevant electronic service or designated internet service 1

If:

 a

an intimate image of a person is, or has been, provided on:

 i

a social media service; or

 ii

a relevant electronic service; or

 iii

a designated internet service; and

 b

the intimate image was posted on the service by an end-user of the service; and

 c

the intimate image is the subject of:

 i

a complaint made to the Commissioner under section 19A; or

 ii

an objection notice given to the Commissioner under section 19B; and

 d

if subparagraph (c)(i) applies—the Commissioner is satisfied that the person did not consent to the posting of the intimate image on the service; and

 e

the posting of the intimate image on the service did not constitute an exempt post;

the Commissioner may give the provider of the service a written notice, to be known as a removal notice, requiring the provider to:

Notice of refusal to give a removal notice

 f

take all reasonable steps to ensure the removal of the intimate image from the service; and

 g

do so within:

 i

48 hours after the notice was given to the provider; or

 ii

such longer period as the Commissioner allows.

 2

So far as is reasonably practicable, the intimate image must be identified in the removal notice in a way that is sufficient to enable the provider of the service to comply with the notice.

 3

If the Commissioner decides to refuse to give a removal notice under subsection (1), the Commissioner must give written notice of the refusal to:

 a

if subparagraph (1)(c)(i) applies—the person who made the complaint mentioned in that subparagraph; or

 b

if subparagraph (1)(c)(ii) applies—the person who gave the objection notice mentioned in that subparagraph.

 44E Removal notice given to an end-user 1

If:

 a

an intimate image of a person is, or has been, provided on:

 i

a social media service; or

 ii

a relevant electronic service; or

 iii

a designated internet service; and

 b

the intimate image was posted on the service by an end-user of the service; and

 c

the intimate image is the subject of:

 i

a complaint made to the Commissioner under section 19A; or

 ii

an objection notice given to the Commissioner under section 19B; and

 d

if subparagraph (c)(i) applies—the Commissioner is satisfied that the person did not consent to the posting of the intimate image on the service; and

 e

the posting of the intimate image on the service did not constitute an exempt post;

the Commissioner may give the end-user a written notice, to be known as a removal notice, requiring the end-user to:

Notice of refusal to give a removal notice

 f

take all reasonable steps to ensure the removal of the intimate image from the service; and

 g

do so within:

 i

48 hours after the notice was given to the end-user; or

 ii

such longer period as the Commissioner allows.

 2

So far as is reasonably practicable, the intimate image must be identified in the removal notice in a way that is sufficient to enable the end-user to comply with the notice.

 3

If the Commissioner decides to refuse to give a removal notice under subsection (1), the Commissioner must give written notice of the refusal to:

 a

if subparagraph (1)(c)(i) applies—the person who made the complaint mentioned in that subparagraph; or

 b

if subparagraph (1)(c)(ii) applies—the person who gave the objection notice mentioned in that subparagraph.

 44F Removal notice given to a hosting service provider 1

If:

 a

an intimate image of a person is, or has been, provided on:

 i

a social media service; or

 ii

a relevant electronic service; or

 iii

a designated internet service; and

 b

the intimate image was posted on the service by an end-user of the service; and

 c

the intimate image is the subject of:

 i

a complaint made to the Commissioner under section 19A; or

 ii

an objection notice given to the Commissioner under section 19B; and

 d

if subparagraph (c)(i) applies—the Commissioner is satisfied that the person did not consent to the posting of the intimate image on the service; and

 e

the intimate image is hosted by a hosting service provider; and

 f

the posting of the intimate image on the service did not constitute an exempt post;

the Commissioner may give the hosting service provider a written notice, to be known as a removal notice, requiring the provider to:

Notice of refusal to give a removal notice

 g

take all reasonable steps to cease hosting the intimate image; and

 h

do so within:

 i

48 hours after the notice was given to the provider; or

 ii

such longer period as the Commissioner allows.

 2

So far as is reasonably practicable, the intimate image must be identified in the removal notice in a way that is sufficient to enable the hosting service provider to comply with the notice.

 3

If the Commissioner decides to refuse to give a removal notice under subsection (1), the Commissioner must give written notice of the refusal to:

 a

if subparagraph (1)(c)(i) applies—the person who made the complaint mentioned in that subparagraph; or

 b

if subparagraph (1)(c)(ii) applies—the person who gave the objection notice mentioned in that subparagraph.

 44G Compliance with removal notice

A person must comply with a requirement under a removal notice to the extent that the person is capable of doing so.

Civil penalty: 500 penalty units.

 44H Formal warning

The Commissioner may issue a formal warning if a person contravenes section 44G.

 44J Transitional

If an intimate image was posted on:

before the commencement of this section, this Division does not apply to the intimate image unless the intimate image was provided on the service after the commencement of this section.

 a

a social media service; or

 b

a relevant electronic service; or

 c

a designated internet service;

 44K Remedial direction

Scope

Remedial direction

Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.

Civil penalty: 500 penalty units.

Remedial direction is not a legislative instrument

 1

This section applies if a person has contravened, or is contravening, section 44B.

 2

The Commissioner may give the person a written direction requiring the person to take specified action directed towards ensuring that the person does not contravene section 44B in the future.

 3

A person must not contravene a direction under subsection (2).

 4

A direction under subsection (2) is not a legislative instrument.

 44L Formal warning

The Commissioner may issue a formal warning if a person contravenes a direction under subsection 44K(2).

 44M Exempt post of an intimate image 1

For the purposes of this Act, if an end-user of:

 a

a social media service; or

 b

a relevant electronic service; or

 c

a designated internet service;

posts an intimate image of a person (the depicted person) on the service, the post is an exempt post if:

 d

the post is necessary for, or of assistance in:

 i

enforcing a law of the Commonwealth, a State or a Territory; or

 ii

monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or a Territory; or

 e

the post is for the purposes of proceedings in a court or tribunal; or

 f

the post is for a genuine medical or scientific purpose; or

 g

an ordinary reasonable person would consider the post acceptable, having regard to the following matters:

 i

the nature and content of the intimate image;

 ii

the circumstances in which the intimate image was posted;

 iii

the age, intellectual capacity, vulnerability or other relevant circumstances of the depicted person;

 iv

the degree to which the posting of the intimate image affects the privacy of the depicted person;

 v

the relationship between the end-user and the depicted person;

 vi

whether the depicted person has died, and if so, how much time has elapsed since the depicted person’s death;

 vii

any other relevant matters; or

 h

both:

 i

the end-user is a protected person (within the meaning of section 91); and

 ii

the post was in connection with the exercise of a power, or the performance of a function, conferred on the Commissioner by or under this Act; or

 i

a condition determined under subsection (2) is satisfied.

 2

The Minister may, by legislative instrument, determine one or more conditions for the purposes of paragraph (1)(i).

 27 Section 45

Omit:

• The Commissioner may accept an enforceable undertaking under Part 6 of the Regulatory Powers (Standard Provisions) Act 2014 that relates to a social media service notice.

• The Commissioner may seek an injunction under Part 7 of the Regulatory Powers (Standard Provisions) Act 2014 that relates to:

substitute:

• The following enforcement powers are available:

 a

a social media service notice; or

 b

an end-user notice.

 a

infringement notices;

 b

enforceable undertakings;

 c

injunctions.

 28 Subsection 46(3)

Before “Federal Circuit Court of Australia”, insert “Federal Court of Australia and the”.

 29 Subsection 46(3)

Omit “is a relevant court”, substitute “are relevant courts”.

 30 After section 46

Insert:

 46A Infringement notices

Provisions subject to an infringement notice

Note: Part 5 of the Regulatory Powers (Standard Provisions) Act 2014 creates a framework for using infringement notices in relation to provisions.

Infringement officer

Relevant chief executive

Extension to external Territories etc.

 1

(1) The following provisions of this Act are subject to an infringement notice under Part 5 of the Regulatory Powers (Standard Provisions) Act 2014:

 a

section 44B;

 b

section 44G;

 c

section 44K.

 2

(2) For the purposes of Part 5 of the Regulatory Powers (Standard Provisions) Act 2014, a member of the staff of the ACMA authorised, in writing, by the Commissioner for the purposes of this subsection is an infringement officer in relation to the provisions mentioned in subsection (1).

 3

(3) For the purposes of Part 5 of the Regulatory Powers (Standard Provisions) Act 2014, the Commissioner is the relevant chief executive in relation to the provisions mentioned in subsection (1).

 4

(4) The relevant chief executive may, in writing, delegate any or all of his or her powers and functions under Part 5 of the Regulatory Powers (Standard Provisions) Act 2014 to a person who is:

 a

a member of the staff of the ACMA; and

 b

an SES employee or an acting SES employee.

 5

A person exercising powers or performing functions under a delegation under subsection (4) must comply with any directions of the relevant chief executive.

 6

(6) Part 5 of the Regulatory Powers (Standard Provisions) Act 2014, as it applies in relation to the provisions mentioned in subsection (1), extends to:

 a

every external Territory; and

 b

acts, omissions, matters and things outside Australia.

 31 Subsection 47(1)

Repeal the subsection, substitute:

Enforceable provisions

 1

(1) The following provisions of this Act are enforceable under Part 6 of the Regulatory Powers (Standard Provisions) Act 2014:

 a

section 36;

 b

section 44B;

 c

section 44G;

 d

section 44K.

 32 Subsection 47(2)

Omit “section 36 of this Act”, substitute “the provisions mentioned in subsection (1)”.

 33 Subsection 47(3)

Before “Federal Circuit Court of Australia”, insert “Federal Court of Australia and the”.

 34 Subsection 47(3)

Omit “is a relevant court”, substitute “are relevant courts”.

 35 Subsections 47(3) and (4)

Omit “section 36 of this Act”, substitute “the provisions mentioned in subsection (1)”.

 36 At the end of subsection 48(1)

Add:

; (c) section 44B;

 d

section 44G;

 e

section 44K.

 37 Subsection 48(3)

Before “Federal Circuit Court of Australia”, insert “Federal Court of Australia and the”.

 38 Subsection 48(3)

Omit “is a relevant court”, substitute “are relevant courts”.

 39 At the end of section 88

Add:

Removal notice

Remedial direction

 8

An application may be made to the Administrative Appeals Tribunal for a review of a decision of the Commissioner under section 44D, 44E or 44F to give a removal notice.

 9

An application may be made to the Administrative Appeals Tribunal for a review of a decision of the Commissioner under section 44K to give a remedial direction.

 40 At the end of subsection 89(1)

Add:

; (c) the making of a complaint under section 19A;

 d

the giving of an objection notice under section 19B;

 e

the making of a statement to, or the giving of a document or information to, the Commissioner in connection with an investigation under section 19C;

 f

the making of a statement to, or the giving of a document or information to, the Commissioner in connection with a consideration under section 19D.

 41 At the end of subsection 89(2)

Add:

; or (d) a removal notice.

 42 Paragraph 92(1)(a)

Omit “or relevant electronic service”, substitute “, relevant electronic service or designated internet service”.

 43 Paragraph 93(a)

Omit “or relevant electronic service”, substitute “, relevant electronic service or designated internet service”.

 44 At the end of subsection 94(1)

Add “or 19C or for the purposes of a consideration under section 19D”.

 45 Section 105 (heading)

Repeal the heading, substitute:

 105 Provider of social media service, relevant electronic service or designated internet service 46 Subsections 105(1) and (2)

Omit “or relevant electronic service” (wherever occurring), substitute “, relevant electronic service or designated internet service”.

 Amendment of the Criminal Code Act 1995

Criminal Code Act 1995

 1 Section 473.1 of the Criminal Code

Insert:

private sexual material means:

where the depiction is in circumstances that reasonable persons would regard as giving rise to an expectation of privacy.

Note: For material that relates to a person who is, or appears to be, under 18 years of age, see:

subject of private sexual material means:

 a

material that:

 i

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

 ii

does so in circumstances that reasonable persons would regard as giving rise to an expectation of privacy; or

 b

material the dominant characteristic of which is the depiction of:

 i

a sexual organ or the anal region of a person who is, or appears to be, 18 years of age or older; or

 ii

the breasts of a female person who is, or appears to be, 18 years of age or older;

 a

(a) the definition of child pornography material; and

 b

the child pornography offences in Subdivision D.

 a

(a) if the material is covered by paragraph (a) of the definition of private sexual material—the person first mentioned in that paragraph; or

 b

(b) if the material is covered by paragraph (b) of the definition of private sexual material—the person mentioned in whichever of subparagraph (b)(i) or (ii) of that definition is applicable.

 2 Section 473.4 of the Criminal Code

Before “The matters”, insert “(1)”.

 3 At the end of section 473.4 of the Criminal Code

Add:

then, in deciding for the purposes of this Part whether reasonable persons would regard the use of the carriage service 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 transmission, making available, publication, distribution, advertisement or promotion of the material.

Definition

consent means free and voluntary agreement.

 2

If:

 a

a particular use of a carriage service involves the transmission, making available, publication, distribution, advertisement or promotion of material; and

 b

the material is private sexual material;

 3

Subsection (2) does not limit subsection (1).

 4

In this section:

 4 After section 474.17 of the Criminal Code

Insert:

Penalty: Imprisonment for 5 years.

Penalty: Imprisonment for 7 years.

Note: For absolute liability, see section 6.2.

 474.17A Aggravated offences involving private sexual material—using a carriage service to menace, harass or cause offence

Standard aggravated offence

Special aggravated offence

Double jeopardy etc.

When conviction must be set aside

the court must set aside the conviction.

the setting aside of the conviction does not prevent proceedings from being instituted against the person for an offence against subsection 474.17(1) or subsection (1) of this section in relation to the conduct that constituted the aggravated offence.

 1

A person commits an offence against this subsection if:

 a

(a) the person commits an offence (the underlying offence) against subsection 474.17(1); and

 b

the commission of the underlying offence involves the transmission, making available, publication, distribution, advertisement or promotion of material; and

 c

the material is private sexual material.

 2

There is no fault element for the physical element described in paragraph (1)(a) other than the fault elements (however described), if any, for the underlying offence.

 3

To avoid doubt, a person does not commit the underlying offence for the purposes of paragraph (1)(a) if the person has a defence to the underlying offence.

 4

A person commits an offence against this subsection if:

 a

(a) the person commits an offence (the underlying offence) against subsection 474.17(1); and

 b

the commission of the underlying offence involves the transmission, making available, publication, distribution, advertisement or promotion of material; and

 c

the material is private sexual material; and

 d

(d) before the commission of the underlying offence, 3 or more civil penalty orders were made against the person under the Regulatory Powers (Standard Provisions) Act 2014 in relation to contraventions of subsection 44B(1) of the Enhancing Online Safety Act 2015.

 5

There is no fault element for the physical element described in paragraph (4)(a) other than the fault elements (however described), if any, for the underlying offence.

 6

To avoid doubt, a person does not commit the underlying offence for the purposes of paragraph (4)(a) if the person has a defence to the underlying offence.

 7

Absolute liability applies to paragraph (4)(d).

 8

(8) A person who has been convicted or acquitted of an offence (the aggravated offence) against subsection (1) may not be convicted of an offence against subsection 474.17(1) or subsection (4) of this section in relation to the conduct that constituted the aggravated offence.

 9

Subsection (8) does not prevent an alternative verdict under section 474.17B.

 10

(10) A person who has been convicted or acquitted of an offence (the aggravated offence) against subsection (4) may not be convicted of an offence against subsection 474.17(1) or subsection (1) of this section in relation to the conduct that constituted the aggravated offence.

 11

Subsection (10) does not prevent an alternative verdict under section 474.17B.

 12

(12) A person who has been convicted or acquitted of an offence (the underlying offence) against subsection 474.17(1) may not be convicted of an offence against subsection (1) or (4) of this section in relation to the conduct that constituted the underlying offence.

 13

If:

 a

(a) a person has been convicted by a court of an offence against subsection (4) on the basis that 3 or more civil penalty orders were made against the person under the Regulatory Powers (Standard Provisions) Act 2014 in relation to contraventions of subsection 44B(1) of the Enhancing Online Safety Act 2015; and

 b

one or more of those civil penalty orders are set aside or reversed on appeal; and

 c

if the civil penalty orders covered by paragraph (b) had never been made, the person could not have been convicted of the offence; and

 d

the person applies to the court for the conviction to be set aside;

 14

If:

 a

(a) a person has been convicted by a court of an offence (the aggravated offence) against subsection (4); and

 b

the court sets aside the conviction under subsection (13);

 474.17B Alternative verdict if aggravated offence not proven 1

(1) If, on a trial for an offence (the aggravated offence) against subsection 474.17A(1), the trier of fact:

 a

is not satisfied that the defendant is guilty of the aggravated offence; but

 b

is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection 474.17(1);

it may find the defendant not guilty of the aggravated offence but guilty of the offence against subsection 474.17(1), so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

it may find the defendant not guilty of the aggravated offence but guilty of the offence against subsection 474.17(1) or subsection 474.17A(1), so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

 2

(2) If, on a trial for an offence (the aggravated offence) against subsection 474.17A(4), the trier of fact:

 a

is not satisfied that the defendant is guilty of the aggravated offence; but

 b

is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection 474.17(1) or subsection 474.17A(1);