Office of the eSafety Commissioner

  1. Online Safety Act 2021 and Statutory Review
    1. Statutory Review of the Online Safety Act

Video Overview by Philippa Dryden

The Enhancing Online Safety for Children Act 2015 created the independent Office of the Children’s eSafety Commissioner.1 The Commissioner enforces the 2-tiered scheme as provided for by the Act, which exists for “the rapid removal from social media services of cyber-bullying material targeted at an Australian child.”2 “Cyber-bullying material targeted at an Australian child” is held to the standard of whether a reasonable person would think that it was directed towards an Australian child and whether it would be “seriously threatening, seriously intimidating, seriously harassing or seriously humiliating the Australian child.”3

Parliament stated their intentions that they expect “each social media service will comply with the basic online safety requirements.”4 The system affects the behaviour of end-users both directly and through intermediaries (social media sites). Social media services are affected on a two tier system, with the essential difference in enforcement being that tier 2 services may have action taken against them by the Commissioner.5 The Act also may be used to target end-users who are deemed to have targeted an Australian child with cyber-bullying material through the use of an end-user notice with a number of consequences including removal of the material, refraining from posting such material and apologising.6

Online Safety Act 2021 and Statutory Review

The Enhancing Online Safety for Children Act 2015 was subsequently replaced by the Online Safety Act 2021 (Cth), which expanded the eSafety Commissioner’s powers beyond protecting children to include all Australians. The 2021 Act broadened the regulatory framework to address a wider range of online harms including adult cyber-abuse, non-consensual sharing of intimate images, and seriously harmful online content.

Statutory Review of the Online Safety Act

The Online Safety Act 2021 (Cth) includes a statutory requirement for review within three years of commencement. The Issues Paper for this review was released in April 2024, with public consultation closing on 21 June 2024.

The review examines five key areas:

  1. Australia’s regulatory approach to online systems, services and processes
  2. Protection of individuals experiencing online harms
  3. Penalties, investigative and information gathering powers
  4. Global strategies for addressing online harms
  5. Regulating digital environments amid technological change

This review process provides an opportunity to assess the Act’s effectiveness in addressing evolving online safety challenges and ensure the regulatory framework remains fit for purpose.

  1. Enhancing Online Safety for Children Act 2015, s 14. ↩

  2. Enhancing Online Safety for Children Act 2015, s 41. ↩

  3. Enhancing Online Safety for Children Act 2015, s 41. ↩

  4. Enhancing Online Safety for Children Act 2015, s 41. ↩

  5. M do Rozario and A Kogekar, Australia’s New Cyber-Bullying Watchdog (17 April 2015) Corrs Chambers Westgarth http://www.corrs.com.au/publications/corrs-in-brief/australias-new-cyber-bullying-watchdog/. ↩

  6. Enhancing Online Safety for Children Act 2015, s 41. ↩