Online Safety (Transitional Provisions and Consequential Amendments) Act 2021

The Online Safety (Transitional Provisions and Consequential Amendments) Act 2021 (No. 77, 2021) acts as the legislative bridge facilitating Australia's transition to a consolidated online safety regulatory framework. Mechanically, the Act repeals the legacy Enhancing Online Safety Act 2015 (Schedule 1) and dismantles the outdated co-regulatory internet content scheme previously housed in Schedule 5 and parts of Schedule 7 of the Broadcasting Services Act 1992 (Schedule 2 Items 30 and 53). In doing so, it transfers the regulatory architecture for online safety from those legacy instruments to the Online Safety Act 2021.

To prevent regulatory fragmentation, the Act amends multiple pieces of federal legislation to ensure definitional alignment with the Online Safety Act 2021. It substitutes legacy terms such as "internet content host" and "internet service provider" with modernized equivalents, such as "Australian hosting service provider", anchoring these definitions within the main Online Safety Act 2021 framework. The affected statutes span taxation, telecommunications, interactive gambling, and criminal law, including the A New Tax System (Goods and Services Tax) Act 1999, the Telecommunications Act 1997, the Interactive Gambling Act 2001, and the Crimes Act 1914.

The Act also amends the Criminal Code Act 1995 by increasing the maximum penalties for offences relating to the harmful use of carriage services under sections 474.17 and 474.17A (Schedule 2 Items 64 and 65). It introduces a structural nexus between administrative civil penalty orders issued under the Online Safety Act 2021 and these enhanced criminal penalties, escalating criminal liability for repeat civil contraveners.

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Commonwealth Coat of Arms of Australia

Online Safety (Transitional Provisions and Consequential Amendments) Act 2021

No. 77, 2021

An Act to deal with transitional and consequential matters arising from the enactment of the Online Safety Act 2021, and for other purposes

Contents

1 Short title

2 Commencement

3 Schedules

Schedule 1—Repeal of the Enhancing Online Safety Act 2015

Enhancing Online Safety Act 2015

Schedule 2—Amendments

Part 1—General amendments

A New Tax System (Goods and Services Tax) Act 1999

Broadcasting Services Act 1992

Crimes Act 1914

Criminal Code Act 1995

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

Freedom of Information Act 1982

Interactive Gambling Act 2001

Telecommunications Act 1997

Telecommunications (Interception and Access) Act 1979

Tobacco Advertising Prohibition Act 1992

Part 2—Amendments contingent on the commencement of the Surveillance Legislation Amendment (Identify and Disrupt) Act 2021

Crimes Act 1914

Part 3—Amendments contingent on the non‑commencement of the Export Market Development Grants Legislation Amendment Act 2020

Export Market Development Grants Act 1997

Part 4—Amendments contingent on the commencement of the Federal Circuit and Family Court of Australia Act 2021

Online Safety Act 2021

Schedule 3—Transitional and application provisions

Part 1—eSafety Commissioner

Part 2—Complaints and objections

Part 3—Provision of material etc.

Part 4—Notices

Part 5—Protection from proceedings

Part 6—Miscellaneous

Commonwealth Coat of Arms of Australia

Online Safety (Transitional Provisions and Consequential Amendments) Act 2021

No. 77, 2021

An Act to deal with transitional and consequential matters arising from the enactment of the Online Safety Act 2021, and for other purposes

[Assented to 23 July 2021]

The Parliament of Australia enacts:

1 Short title

This Act is the Online Safety (Transitional Provisions and Consequential Amendments) Act 2021.

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
Column 1 Column 2 Column 3
Provisions Commencement Date/Details
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day after this Act receives the Royal Assent. 24 July 2021
1. Schedule 1 At the same time as the Online Safety Act 2021 commences.However, the provisions do not commence at all if the Online Safety Act 2021 does not commence. 23 January 2022
1. Schedule 2, Part 1 At the same time as the Online Safety Act 2021 commences.However, the provisions do not commence at all if the Online Safety Act 2021 does not commence. 23 January 2022
1. Schedule 2, Part 2 The later of:(a) immediately after the commencement of the provisions covered by table item 2; and(b) the commencement of Schedule 3 to the Surveillance Legislation Amendment (Identify and Disrupt) Act 2021.However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur. 23 January 2022(paragraph (a) applies)
1. Schedule 2, Part 3 At the same time as the Online Safety Act 2021 commences.However, the provisions do not commence at all if:(a) the Online Safety Act 2021 does not commence; or(b) Schedule 1 to the Export Market Development Grants Legislation Amendment Act 2020 commences before the commencement of the Online Safety Act 2021. Never commenced(paragraph (b) applies)
6 Schedule 2, Part 4 The later of:(a) immediately after the commencement of the Online Safety Act 2021; and(b) the commencement of the Federal Circuit and Family Court of Australia Act 2021. 23 January 2022(paragraph (a) applies)
1. Schedule 3 At the same time as the Online Safety Act 2021 commences.However, the provisions do not commence at all if the Online Safety Act 2021 does not commence. 23 January 2022

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.

Schedule 1—Repeal of the Enhancing Online Safety Act 2015

Enhancing Online Safety Act 2015

1 The whole of the Act

Repeal the Act.

Schedule 2—Amendments

Part 1—General amendments

A New Tax System (Goods and Services Tax) Act 1999

1 Subparagraph 38‑570(3)(a)(ii)

Omit “Schedule 5 to the Broadcasting Services Act 1992”, substitute “the Online Safety Act 2021”.

Broadcasting Services Act 1992

2 Paragraphs 3(1)(ha), (k), (l) and (m)

Repeal the paragraphs.

3 Subsection 3(2) (definition of designated content/hosting service provider)

Repeal the definition.

4 Subsection 3(2) (definition of internet content)

Repeal the definition.

5 Subsection 4(1)

Omit “, internet services”.

6 Subsections 4(3) and (3AA)

Repeal the subsections.

7 Subsection 4(4) (definition of designated content/hosting service)

Repeal the definition.

8 Subsection 4(4) (definition of internet carriage service)

Repeal the definition.

9 Subsection 4(4) (definition of internet content)

Repeal the definition.

10 Subsection 4(4) (definition of internet service provider)

Repeal the definition.

11 Paragraph 5(1)(a)

Omit “, the internet industry, the commercial content service industry”.

12 Subsection 5(4) (definition of commercial content service)

Repeal the definition.

13 Subsection 6(1) (definition of Commissioner)

Repeal the definition.

14 Subsection 6(1) (paragraph (b) of the definition of registered code of practice)

Repeal the paragraph.

15 Subsection 6(1) (paragraph (c) of the definition of registered code of practice)

Omit “Schedule 6; or”, substitute “Schedule 6.”.

16 Subsection 6(1) (paragraph (d) of the definition of registered code of practice)

Repeal the paragraph.

17 Subsection 10A(1)

Omit “(1)”.

18 Subsection 10A(2)

Repeal the subsection.

19 Paragraph 130L(e)

Omit “Part 5 of Schedule 5 to this Act”, substitute “Division 7 of Part 9 of the Online Safety Act 2021”.

20 Paragraph 130L(fa)

Repeal the paragraph.

21 Part 13 (heading)

Omit “and the Commissioner”.

22 Section 169A

Repeal the section.

23 Subsection 173(1)

Omit “(1)”.

24 Subsection 173(2)

Repeal the subsection.

25 Subsections 174(4), (5) and (6)

Repeal the subsections.

26 Subsections 176(3) and (4)

Repeal the subsections.

27 Subsection 177(2)

Repeal the subsection.

28 Subsection 200(4)

Repeal the subsection.

29 Section 216B

Repeal the section.

30 Schedule 5

Repeal the Schedule.

31 Subclause 2(1) of Schedule 6 (definition of internet carriage service)

Omit “Schedule 5”, substitute “the Online Safety Act 2021”.

32 Paragraph 24(1)(h) of Schedule 6

Omit “an online provider rule (within the meaning of Schedule 5)”, substitute “a service provider rule (within the meaning of the Online Safety Act 2021)”.

33 Schedule 7 (heading)

Omit “Content services”, substitute “Content services definitions”.

34 Part 1 of Schedule 7 (heading)

Repeal the heading.

35 Clause 1 of Schedule 7

Repeal the clause, substitute:

1 Purpose of this Schedule

The purpose of this Schedule is to enable:

(a) other Acts; and

(b) other provisions of this Act;

to define certain expressions as having the same meaning as in this Schedule.

36 Clause 2 of Schedule 7 (definitions of access‑control system and adult)

Repeal the definitions.

37 Clause 2 of Schedule 7 (definition of adult chat service)

Omit “prohibited content or potential prohibited content”, substitute “content that is class 1 material or content that is class 2 material covered by paragraph 107(1)(a), (b), (c), (d) or (e) of Online Safety Act 2021”.

38 Clause 2 of Schedule 7 (definitions of ancillary subscription television content service, Australia, Australian connection and Australian police force)

Repeal the definitions.

39 Clause 2 of Schedule 7 (definitions of carriage service intermediary, carriage service provider, child and civil proceeding)

Repeal the definitions.

40 Clause 2 of Schedule 7

Insert:

class 1 material has the same meaning as in the Online Safety Act 2021.

class 2 material has the same meaning as in the Online Safety Act 2021.

41 Clause 2 of Schedule 7 (definitions of classification application, Classification Board, Classification Review Board and classified)

Repeal the definitions.

42 Clause 2 of Schedule 7 (definitions of commercial content service provider and computer game)

Repeal the definitions.

43 Clause 2 of Schedule 7 (definition of corresponding print publication)

Repeal the definition.

44 Clause 2 of Schedule 7 (definitions of data storage device, designated content/hosting service, designated content/hosting service provider, designated content/hosting service provider rule, eligible electronic publication, engage in conduct and evidential burden)

Repeal the definitions.

45 Clause 2 of Schedule 7 (paragraph (a) of the definition of exempt internet directory service)

46 Clause 2 of Schedule 7 (paragraph (a) of the definition of exempt internet search engine service)

47 Clause 2 of Schedule 7 (paragraph (b) of the definition of exempt point‑to‑point content service)

48 Clause 2 of Schedule 7 (definitions of film, final link‑deletion notice, final service‑cessation notice, final take‑down notice, hosting service, hosting service provider, immediate circle, interim link‑deletion notice, interim service‑cessation notice, interim take‑down notice, internet carriage service and internet content)

Repeal the definitions.

49 Clause 2 of Schedule 7 (definitions of links service, links service provider, live content, live content service, live content service provider, MA 15+ content, mobile carriage service provider and mobile premium service)

Repeal the definitions.

50 Clause 2 of Schedule 7 (definitions of potential prohibited content, prohibited content, provided by a content service, provided to the public, public mobile telecommunications service, R 18+ content and restricted access system)

Repeal the definitions.

51 Clause 2 of Schedule 7 (definitions of special link‑deletion notice, special service‑cessation notice, special take‑down notice, stored content and trained content assessor)

Repeal the definitions.

52 Clauses 3, 4, 6, 8, 9A, 10, 11, 14, 15, 16, 18, and 19 of Schedule 7

Repeal the clauses.

53 Parts 2 to 9 of Schedule 7

Repeal the Parts.

54 Clause 2 of Schedule 8 (definition of internet carriage service)

Omit “Schedule 5”, substitute “the Online Safety Act 2021”.

55 Clause 30 of Schedule 8

Omit “Schedule 5 or 7”, substitute “Part 9 of the Online Safety Act 2021”.

56 Clause 31 of Schedule 8

Repeal the clause.

Crimes Act 1914

57 Subsection 3C(1) (definition of electronic service)

Omit “Enhancing Online Safety Act 2015”, substitute “Online Safety Act 2021”.

58 Subsection 3CAA(3)

Omit “Enhancing Online Safety Act 2015”, substitute “Online Safety Act 2021”.

Criminal Code Act 1995

59 Paragraphs 273.9(5)(a) and (b) of the Criminal Code

Repeal the paragraphs, substitute:

(a) assisting the eSafety Commissioner to perform the functions, or exercise the powers, conferred on the eSafety Commissioner by Part 9 of the Online Safety Act 2021; or

(b) manufacturing or developing, or updating, content filtering technology (including software) in accordance with:

(i) an industry code registered under Division 7 of Part 9 of the Online Safety Act 2021; or

(ii) an industry standard registered under Division 7 of Part 9 of the Online Safety Act 2021.

60 Section 473.1 of the Criminal Code

Insert:

Australian hosting service provider has the same meaning as in the Online Safety Act 2021.

61 Section 473.1 of the Criminal Code (definition of internet content host)

Repeal the definition.

62 Section 473.1 of the Criminal Code (definition of internet service provider)

Omit “Schedule 5 to the Broadcasting Services Act 1992”, substitute “the Online Safety Act 2021”.

63 Paragraph 473.5(d) of the Criminal Code

Omit “internet content host” (wherever occurring), substitute “Australian hosting service provider”.

64 Subsection 474.17(1) of the Criminal Code (penalty)

Omit “3 years”, substitute “5 years”.

65 Subsection 474.17A(1) of the Criminal Code (penalty)

Omit “5 years”, substitute “6 years”.

66 Paragraph 474.17A(4)(d) of the Criminal Code

Repeal the paragraph, substitute:

(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 either or both of the following:

(i) contraventions of subsection 75(1) of the Online Safety Act 2021;

(ii) contraventions of section 91 of the Online Safety Act 2021 that relate to removal notices given under section 89 of that Act.

67 Paragraph 474.17A(13)(a) of the Criminal Code

Repeal the paragraph, substitute:

(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 either or both of the following:

(i) contraventions of subsection 75(1) of the Online Safety Act 2021;

(ii) contraventions of section 91 of the Online Safety Act 2021 that relate to removal notices given under section 89 of that Act; and

68 Paragraphs 474.24(4)(a) and (b) of the Criminal Code

Repeal the paragraphs, substitute:

(a) assisting the eSafety Commissioner to perform the functions, or exercise the powers, conferred on the eSafety Commissioner by Part 9 of the Online Safety Act 2021; or

(b) manufacturing or developing, or updating, content filtering technology (including software) in accordance with:

(i) an industry code registered under Division 7 of Part 9 of the Online Safety Act 2021; or

(ii) an industry standard registered under Division 7 of Part 9 of the Online Safety Act 2021.

69 Paragraph 474.25(a) of the Criminal Code

Omit “internet content host”, substitute “Australian hosting service provider”.

70 Section 474.30 of the Criminal Code (paragraphs (a) and (b) of the definition of content service)

Omit “Enhancing Online Safety Act 2015”, substitute “Online Safety Act 2021”.

71 Section 474.30 of the Criminal Code (definition of hosting service)

Omit “Enhancing Online Safety Act 2015”, substitute “Online Safety Act 2021”.

72 Section 474.30 of the Criminal Code (definition of hosting service)

Omit “9C(a)(ii) and (b)(ii)”, substitute “17(a)(ii) and (b)(ii)”.

73 Paragraph 474.41(1)(a) of the Criminal Code

Omit “Enhancing Online Safety Act 2015”, substitute “Online Safety Act 2021”.

74 Section 474.44 of the Criminal Code

Repeal the section, substitute:

474.44 This Subdivision does not limit Part 9 of the Online Safety Act 2021

This Subdivision does not limit the operation of Part 9 of the Online Safety Act 2021.

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

75 Section 4

Repeal the section.

Freedom of Information Act 1982

76 Subsection 4(1) (paragraph (a) of the definition of exempt internet‑content document)

After “Schedule 5 to the Broadcasting Services Act 1992”, insert “, as in force before the commencement of the Online Safety Act 2021”.

77 Subsection 4(1)

Insert:

exempt online content scheme document means:

(a) a document containing material (within the meaning of the Online Safety Act 2021), or a record of material (within the meaning of that Act), that is online content scheme material; or

(b) a document that sets out how to access, or that is likely to facilitate access to, material (within the meaning of the Online Safety Act 2021) that is online content scheme material (for example, by setting out the name of a website, an IP address, a URL or a password).

78 Subsection 4(1) (subparagraphs (b)(i) and (ii) of the definition of offensive content‑service content)

After “that Schedule”, insert “, as in force before the commencement of the Online Safety Act 2021”.

79 Subsection 4(1)

Insert:

online content scheme material means material that:

(a) has been provided on a social media service, relevant electronic service or designated internet service (within the meaning of the Online Safety Act 2021); and

(b) was:

(i) class 1 material (within the meaning of the Online Safety Act 2021); or

(ii) class 2 material (within the meaning of the Online Safety Act 2021) that is covered by paragraph 107(1)(a), (b), (c), (d) or (e) of that Act;

when it was provided on the service.

80 Subsection 4(1) (definition of offensive internet content)

After “Schedule 5 to the Broadcasting Services Act 1992”, insert “, as in force before the commencement of the Online Safety Act 2021”.

81 Division 1 of Part II of Schedule 2 (paragraph (a) of the item dealing with Australian Communications and Media Authority)

After “Schedule 7 to the Broadcasting Services Act 1992”, insert “, as in force before the commencement of the Online Safety Act 2021”.

82 Division 1 of Part II of Schedule 2 (paragraph (b) of the item dealing with Australian Communications and Media Authority)

After “Schedule 5 to that Act”, insert “, as in force before the commencement of the Online Safety Act 2021”.

83 Division 1 of Part II of Schedule 2 (at the end of the item dealing with Australian Communications and Media Authority)

Add:

; and (c) exempt online content scheme documents concerning the performance of a function, or the exercise of a power, under Part 9 of the Online Safety Act 2021.

84 Division 1 of Part II of Schedule 2 (paragraph (a) of the item dealing with Classification Board)

After “Schedule 7 to the Broadcasting Services Act 1992”, insert “, as in force before the commencement of the Online Safety Act 2021”.

85 Division 1 of Part II of Schedule 2 (paragraph (b) of the item dealing with Classification Board)

After “Schedule 5 to that Act”, insert “, as in force before the commencement of the Online Safety Act 2021”.

86 Division 1 of Part II of Schedule 2 (at the end of the item dealing with Classification Board)

Add:

; and (c) exempt online content scheme documents concerning the performance of a function, or the exercise of a power, under Part 9 of the Online Safety Act 2021.

87 Division 1 of Part II of Schedule 2 (paragraph (a) of the item dealing with Classification Review Board)

After “Schedule 7 to the Broadcasting Services Act 1992”, insert “, as in force before the commencement of the Online Safety Act 2021”.

88 Division 1 of Part II of Schedule 2 (paragraph (b) of the item dealing with Classification Review Board)

After “Schedule 5 to that Act”, insert “, as in force before the commencement of the Online Safety Act 2021”.

89 Division 1 of Part II of Schedule 2 (paragraph (a) of the item dealing with eSafety Commissioner)

After “Schedule 7 to the Broadcasting Services Act 1992”, insert “, as in force before the commencement of the Online Safety Act 2021”.

90 Division 1 of Part II of Schedule 2 (paragraph (b) of the item dealing with eSafety Commissioner)

After “Schedule 5 to that Act”, insert “, as in force before the commencement of the Online Safety Act 2021”.

91 Division 1 of Part II of Schedule 2 (at the end of the item dealing with eSafety Commissioner)

Add:

; and (c) exempt online content scheme documents concerning the performance of a function, or the exercise of a power, under Part 9 of the Online Safety Act 2021.

Interactive Gambling Act 2001

92 Section 4 (definition of access)

Omit “Schedule 5 to the Broadcasting Services Act 1992”, substitute “the Online Safety Act 2021”.

93 Section 4 (definition of internet content)

Repeal the definition.

94 Section 4 (definition of internet service provider)

Omit “Schedule 5 to the Broadcasting Services Act 1992”, substitute “the Online Safety Act 2021”.

95 Subsection 36(2)

Omit “Schedule 5 or 7 to the Broadcasting Services Act 1992”, substitute “Division 7 of Part 9 of the Online Safety Act 2021”.

96 Subsection 36(3)

Omit “Schedule 5 or 7 to the Broadcasting Services Act 1992”, substitute “Division 7 of Part 9 of the Online Safety Act 2021”.

Telecommunications Act 1997

97 Section 7 (definition of internet service provider)

Omit “Schedule 5 to the Broadcasting Services Act 1992”, substitute “the Online Safety Act 2021”.

Telecommunications (Interception and Access) Act 1979

98 Subparagraph 187A(3)(b)(ii)

Omit “Schedule 5 to the Broadcasting Services Act 1992”, substitute “the Online Safety Act 2021”.

Tobacco Advertising Prohibition Act 1992

99 Paragraph 16B(1)(d)

Omit “internet content host” (wherever occurring), substitute “Australian hosting service provider”.

100 Subsection 16B(2)

Insert:

Australian hosting service provider has the same meaning as in the Online Safety Act 2021.

101 Subsection 16B(2) (definition of internet content host)

Repeal the definition.

102 Subsection 16B(2) (definition of internet service provider)

Omit “Schedule 5 to the Broadcasting Services Act 1992”, substitute “the Online Safety Act 2021”.

Part 2—Amendments contingent on the commencement of the Surveillance Legislation Amendment (Identify and Disrupt) Act 2021

Crimes Act 1914

103 Section 3ZZUK (definition of account)

Omit “Enhancing Online Safety Act 2015”, substitute “Online Safety Act 2021”.

104 Section 3ZZUK (definition of electronic service)

Omit “Enhancing Online Safety Act 2015”, substitute “Online Safety Act 2021”.

Part 3—Amendments contingent on the non‑commencement of the Export Market Development Grants Legislation Amendment Act 2020

Export Market Development Grants Act 1997

105 Section 57A (heading)

Omit “prohibited content or potential prohibited content”, substitute “class 1 material or class 2 material”.

106 Paragraphs 57A(a) and (b)

Repeal the paragraphs, substitute:

(a) class 1 material (within the meaning of the Online Safety Act 2021); or

(b) class 2 material (within the meaning of the Online Safety Act 2021) that is covered by paragraph 107(1)(a), (b), (c), (d) or (e) of that Act.

107 Section 57A (note)

Omit “, potential prohibited content and prohibited content”.

108 Subsection 107(1) (definition of potential prohibited content)

Repeal the definition.

109 Subsection 107(1) (definition of prohibited content)

Repeal the definition.

Part 4—Amendments contingent on the commencement of the Federal Circuit and Family Court of Australia Act 2021

Online Safety Act 2021

110 Subsection 162(3)

Omit “Federal Circuit Court of Australia”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

111 Subsection 164(3)

Omit “Federal Circuit Court of Australia”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

112 Subsection 165(3)

Omit “Federal Circuit Court of Australia”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

Schedule 3—Transitional and application provisions

Part 1—eSafety Commissioner

1 Transitional—continuity of eSafety Commissioner

The repeal of the Enhancing Online Safety Act 2015 does not affect the continuity of:

(a) the office of eSafety Commissioner; or

(b) the appointment of the eSafety Commissioner; or

(d) a determination made by the Remuneration Tribunal, so far as the determination relates to the eSafety Commissioner.

2 Transitional—instrument of appointment of the eSafety Commissioner

(1) This item applies to an instrument of appointment of the eSafety Commissioner under subsection 50(1) of the Enhancing Online Safety Act 2015 that was in force immediately before the commencement of this item.

(2) The instrument has effect after the commencement of this item as if it had been made under subsection 167(1) of the Online Safety Act 2021.

3 Transitional—instrument of appointment of a person to act as the eSafety Commissioner

(1) This item applies if an instrument of appointment of a person to act as the eSafety Commissioner under subsection 52(1) of the Enhancing Online Safety Act 2015 was in force immediately before the commencement of this item.

(2) The instrument has effect after the commencement of this item as if it had been made under subsection 169(1) of the Online Safety Act 2021.

Part 2—Complaints and objections

4 Transitional—complaints about cyber‑bullying material (complaint made by an Australian child)

(1) This item applies to a complaint made under subsection 18(1) of the Enhancing Online Safety Act 2015 before the commencement of this item if the eSafety Commissioner has neither:

(a) taken action in response to the complaint; nor

(b) refused to take action in response to the complaint;

before the commencement of this item.

(2) The complaint has effect, after the commencement of this item, as if it were a complaint made under subsection 30(1) of the Online Safety Act 2021.

5 Transitional—complaints about cyber‑bullying material (complaint made on behalf of an Australian child)

(1) This item applies to a complaint made under subsection 18(2) of the Enhancing Online Safety Act 2015 before the commencement of this item if the eSafety Commissioner has neither:

(a) taken action in response to the complaint; nor

(b) refused to take action in response to the complaint;

before the commencement of this item.

(2) The complaint has effect, after the commencement of this item, as if it were a complaint made under subsection 30(2) of the Online Safety Act 2021.

6 Transitional—complaints about cyber‑bullying material (complaint made by an adult who was an Australian child)

(1) This item applies to a complaint made under subsection 18(3) of the Enhancing Online Safety Act 2015 before the commencement of this item if the eSafety Commissioner has neither:

(a) taken action in response to the complaint; nor

(b) refused to take action in response to the complaint;

before the commencement of this item.

(2) The complaint has effect, after the commencement of this item, as if it were a complaint made under subsection 30(3) of the Online Safety Act 2021.

7 Transitional—complaints about intimate images (complaint made by a person depicted in an intimate image)

(1) This item applies to a complaint made under subsection 19A(1) of the Enhancing Online Safety Act 2015 before the commencement of this item if the eSafety Commissioner has neither:

(a) taken action in response to the complaint; nor

(b) refused to take action in response to the complaint;

before the commencement of this item.

(2) The complaint has effect, after the commencement of this item, as if it were a complaint made under subsection 32(1) of the Online Safety Act 2021.

8 Transitional—complaints about intimate images (complaint made on behalf of a person depicted in an intimate image)

(1) This item applies to a complaint made under subsection 19A(3) of the Enhancing Online Safety Act 2015 before the commencement of this item if the eSafety Commissioner has neither:

(a) taken action in response to the complaint; nor

(b) refused to take action in response to the complaint;

before the commencement of this item.

(2) The complaint has effect, after the commencement of this item, as if it were a complaint made under subsection 32(3) of the Online Safety Act 2021.

9 Transitional—objection notices (objection notice given by a person depicted in an intimate image)

(1) This item applies to an objection notice given under subsection 19B(1) of the Enhancing Online Safety Act 2015 before the commencement of this item if the eSafety Commissioner has neither:

(a) taken action in response to the objection notice; nor

(b) refused to take action in response to the objection notice;

before the commencement of this item.

(2) The objection notice has effect, after the commencement of this item, as if it were an objection notice given under subsection 33(1) of the Online Safety Act 2021.

10 Transitional—objection notices (objection notice given on behalf of a person depicted in an intimate image)

(1) This item applies to an objection notice given under subsection 19B(3) of the Enhancing Online Safety Act 2015 before the commencement of this item if the eSafety Commissioner has neither:

(a) taken action in response to the objection notice; nor

(b) refused to take action in response to the objection notice;

before the commencement of this item.

(2) The objection notice has effect, after the commencement of this item, as if it were an objection notice given under subsection 33(3) of the Online Safety Act 2021.

Part 3—Provision of material etc.

11 Transitional—material etc.

(1) The following provisions:

(a) Division 2 of Part 3 of the Online Safety Act 2021;

(b) Part 5 of that Act;

do not apply to the provision of material on:

(d) a relevant electronic service;

unless the material was provided on the service after the start of 1 July 2015.

Note: The cyber‑bullying provisions of the Enhancing Online Safety Act 2015 commenced on 1 July 2015.

(2) The following provisions:

(a) Division 2 of Part 3 of the Online Safety Act 2021;

(b) Part 5 of that Act;

do not apply to the provision of material on a designated internet service unless the material was provided on the service after the commencement of this item.

(3) The following provisions:

(a) Division 3 of Part 3 of the Online Safety Act 2021;

(b) Division 3 of Part 6 of that Act;

do not apply to the provision of an intimate image on:

(d) a relevant electronic service; or

(e) a designated internet service;

unless the intimate image was provided on the service after the start of 1 September 2018.

Note: The intimate images provisions of the Enhancing Online Safety Act 2015 commenced on 1 September 2018.

(4) The following provisions:

(a) Division 4 of Part 3 of the Online Safety Act 2021;

(b) Part 7 of that Act;

do not apply to the provision of material on:

(d) a relevant electronic service; or

(e) a designated internet service;

unless the material was provided on the service after the commencement of this item.

(5) Sections 113A, 118A and 123A of the Online Safety Act 2021 apply in relation to material provided on:

(a) a social media service; or

(b) a relevant electronic service; or

after the commencement of this item.

Part 4—Notices

12 Transitional—pre‑commencement social media service notices

(1) Despite the repeal of the following provisions of the Enhancing Online Safety Act 2015 by this Act:

(a) Subdivision B of Division 3 of Part 4;

(b) subsections 88(3) and (4);

those provisions continue to apply, in relation to a social media service notice that was in force immediately before the commencement of this item, as if those repeals had not happened.

(2) Despite the repeal of Part 6 of the Enhancing Online Safety Act 2015 by this Act, that Part continues to apply, in relation to section 36 of that Act, as if that repeal had not happened.

13 Transitional—pre‑commencement end‑user notices

(1) Despite the repeal of the following provisions of the Enhancing Online Safety Act 2015 by this Act:

(a) Part 5;

(b) subsection 88(7);

those provisions continue to apply, in relation to an end‑user notice that was in force immediately before the commencement of this item, as if those repeals had not happened.

(2) Despite the repeal of section 48 of the Enhancing Online Safety Act 2015 by this Act, that section continues to apply, in relation to section 43 of that Act, as if that repeal had not happened.

14 Transitional—pre‑commencement removal notices

(1) Despite the repeal of the following provisions of the Enhancing Online Safety Act 2015 by this Act:

(a) Division 3 of Part 5A;

(b) subsection 88(8);

those provisions continue to apply, in relation to a removal notice that was in force immediately before the commencement of this item, as if those repeals had not happened.

(2) Despite the repeal of Part 6 of the Enhancing Online Safety Act 2015 by this Act, that Part continues to apply, in relation to section 44G of that Act, as if that repeal had not happened.

Part 5—Protection from proceedings

15 Transitional—protection from civil proceedings

(1) Despite the repeal of subsection 89(1) of the Enhancing Online Safety Act 2015 by this Act, that subsection continues to apply, in relation to an act done before the commencement of this item, as if that repeal had not happened.

(2) Despite the repeal of subsection 89(2) of the Enhancing Online Safety Act 2015 by this Act, that subsection continues to apply, in relation to anything done in compliance with:

(a) a request given under section 29 of that Act before the commencement of this item; or

(b) a social media service notice given before the commencement of this item; or

(d) a removal notice given before the commencement of this item;

as if that repeal had not happened.

(3) Despite the repeal of subclause 88(1) of Schedule 5 to the Broadcasting Services Act 1992 by this Act, that subclause continues to apply, in relation to anything done before the commencement of this item, as if that repeal had not happened.

(4) Despite the repeal of subclause 88(2) of Schedule 5 to the Broadcasting Services Act 1992 by this Act, that subclause continues to apply, in relation to anything done before the commencement of this item, as if that repeal had not happened.

(5) Despite the repeal of subclause 111(1) of Schedule 7 to the Broadcasting Services Act 1992 by this Act, that subclause continues to apply, in relation to anything done before the commencement of this item, as if that repeal had not happened.

(6) Despite the repeal of subclause 111(2) of Schedule 7 to the Broadcasting Services Act 1992 by this Act, that subclause continues to apply, in relation to anything done before the commencement of this item, as if that repeal had not happened.

(7) Despite the repeal of subclause 111(3) of Schedule 7 to the Broadcasting Services Act 1992 by this Act, that subclause continues to apply, in relation to anything done before the commencement of this item, as if that repeal had not happened.

16 Transitional—liability for damages

Despite the repeal of section 90 of the Enhancing Online Safety Act 2015 by this Act, that section continues to apply, in relation to an act or matter in good faith done or omitted to be done:

(a) in the performance or purported performance of any function; or

(b) in the exercise or purported exercise of any power;

conferred on the eSafety Commissioner by or under:

(d) a provision of the Broadcasting Services Act 1992 repealed by this Act;

as if the repeal of that section had not happened.

17 Transitional—protection from criminal proceedings

(1) Despite the repeal of section 91 of the Enhancing Online Safety Act 2015 by this Act, that section continues to apply, in relation to:

(a) the collection of material; or

(b) the possession of material; or

(d) the delivery of material; or

(e) the copying of material; or

(f) the doing of any other thing in relation to material;

in connection with the exercise of a power, or the performance of a function, conferred on the eSafety Commissioner by or under the repealed Enhancing Online Safety Act 2015, as if the repeal of that section had not happened.

(2) Despite the repeal of clause 112 of Schedule 7 to the Broadcasting Services Act 1992 by this Act, that clause continues to apply, in relation to:

(a) the collection of content or material; or

(b) the possession of content or material; or

(d) the delivery of content or material; or

(e) the copying of content or material; or

(f) the doing of any other thing in relation to content or material;

in connection with the exercise of a power, or the performance of a function, conferred on the eSafety Commissioner by or under a provision of the Broadcasting Services Act 1992 repealed by this Act, as if the repeal of that clause had not happened.

(3) For the purposes of this item, possession includes have in custody or control.

Part 6—Miscellaneous

18 Transitional—copies of material

Despite the repeal of section 94 of the Enhancing Online Safety Act 2015 by this Act, that section continues to apply, in relation to copies made before the commencement of this item, as if that repeal had not happened.

19 Transitional—disclosure of information

Despite the repeal of Part 9 of the Enhancing Online Safety Act 2015 by this Act, that Part continues to apply, in relation to information that was obtained by the eSafety Commissioner as a result of the performance of a function, or the exercise of a power, conferred on the eSafety Commissioner by or under:

(a) the repealed Enhancing Online Safety Act 2015; or

(b) a provision of the Broadcasting Services Act 1992 repealed by this Act;

as if the repeal of that Part had not happened.

20 Transitional—compensation for acquisition of property

Despite the repeal of section 95 of the Enhancing Online Safety Act 2015 by this Act, that section continues to apply, in relation to the operation of:

(a) the repealed Enhancing Online Safety Act 2015; or

(b) legislative rules made under that Act;

as if that repeal had not happened.

21 Application—subsection 273.9(5) of the Criminal Code

The amendment of subsection 273.9(5) of the Criminal Code made by this Act applies in relation to conduct engaged in after the commencement of this item.

22 Application—subsection 474.24(4) of the Criminal Code

The amendment of subsection 474.24(4) of the Criminal Code made by this Act applies in relation to conduct engaged in after the commencement of this item.

[Minister’s second reading speech made in—

House of Representatives on 24 February 2021

Senate on 17 March 2021]

(21/21)

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Online Safety (Transitional Provisions and Consequential Amendments) Act 2021

No. 77, 2021

An Act to deal with transitional and consequential matters arising from the enactment of the Online Safety Act 2021, and for other purposes

Contents

1 Short title

2 Commencement

3 Schedules

Schedule 1—Repeal of the Enhancing Online Safety Act 2015

Enhancing Online Safety Act 2015

Schedule 2—Amendments

Part 1—General amendments

A New Tax System (Goods and Services Tax) Act 1999

Broadcasting Services Act 1992

Crimes Act 1914

Criminal Code Act 1995

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

Freedom of Information Act 1982

Interactive Gambling Act 2001

Telecommunications Act 1997

Telecommunications (Interception and Access) Act 1979

Tobacco Advertising Prohibition Act 1992

Part 2—Amendments contingent on the commencement of the Surveillance Legislation Amendment (Identify and Disrupt) Act 2021

Crimes Act 1914

Part 3—Amendments contingent on the non‑commencement of the Export Market Development Grants Legislation Amendment Act 2020

Export Market Development Grants Act 1997

Part 4—Amendments contingent on the commencement of the Federal Circuit and Family Court of Australia Act 2021

Online Safety Act 2021

Schedule 3—Transitional and application provisions

Part 1—eSafety Commissioner

Part 2—Complaints and objections

Part 3—Provision of material etc.

Part 4—Notices

Part 5—Protection from proceedings

Part 6—Miscellaneous

Online Safety (Transitional Provisions and Consequential Amendments) Act 2021

To understand the legal mechanics of this transitional instrument, several primary concepts must be examined:

Class 1 Material and Class 2 Material

The Act replaces the legacy classifications of "prohibited content" and "potential prohibited content" under the Broadcasting Services Act 1992 with "class 1 material" and "class 2 material" (Schedule 2 Item 40). These terms derive their meanings directly from the Online Safety Act 2021. This conceptual pivot shifts the regulatory focus from old-world web-hosting concepts to a categorized, risk-based approach to online material. These classifications are woven back into various secondary statutes, including the Export Market Development Grants Act 1997 (Schedule 2 Part 3) and the Freedom of Information Act 1982 (Schedule 2 Part 1), ensuring that the restriction of government funding or public access is tied to the new statutory categories.

Australian Hosting Service Provider

The Act systematically removes the term "internet content host" from the federal statute book, replacing it with "Australian hosting service provider" (e.g., Schedule 2 Items 60, 63, and 99-101). This concept, defined by reference to the Online Safety Act 2021, reflects the evolution of cloud computing, content delivery networks, and localized hosting architectures. By modernizing this definition, the law ensures that contemporary intermediaries cannot escape the jurisdictional reach of online safety enforcement notices.

Aggravated Carriage Service Offences and Civil Penalty Triggers

Under the Criminal Code Act 1995, the Act establishes an escalation pathway for criminal liability based on a person's civil compliance history. Section 474.17A is amended to dictate that an aggravated carriage service offence (carrying an increased penalty of 6 years) is triggered if the offender has previously been subject to three or more civil penalty orders under the Regulatory Powers (Standard Provisions) Act 2014 (Schedule 2 Items 66 and 67). These prior civil penalty orders must relate to either contraventions of section 75(1) of the Online Safety Act 2021 (failing to comply with a social media service notice) or section 91 of that Act (failing to comply with a removal notice). This creates a direct connection between administrative non-compliance and criminal sentencing.

Exempt Online Content Scheme Documents

The Act amends the Freedom of Information Act 1982 to insert the concept of an "exempt online content scheme document" (Schedule 2 Item 77). This refers to any document containing, recording, or facilitating access to class 1 or class 2 material that was provided on a social media service, relevant electronic service, or designated internet service. This concept operates to block the use of freedom of information laws to access or redistribute harmful online content that has been subject to regulatory action.

The Act impacts several distinct classes of natural and legal persons, altering their rights, obligations, and operational risks:

Social Media, Relevant Electronic, and Designated Internet Service Providers

Platforms operating in the Australian market face a restructured compliance regime. By repealing Schedule 5 of the Broadcasting Services Act 1992, the Act shifts their regulatory interface entirely to the eSafety Commissioner under the Online Safety Act 2021. These providers must manage transitional rules governing the retrospectivity of content complaints. For instance, cyber-bullying rules apply to historical material back to 1 July 2015 for social media and relevant electronic services, but only to post-commencement material for designated internet services (Schedule 3 Item 11).

The eSafety Commissioner and Regulatory Staff

The office and personnel of the eSafety Commissioner are directly affected. While their appointments are legally preserved (Schedule 3 Items 1 and 2), their administrative caseload is reshaped. They must process inherited complaints under the procedural rules of the new Act while simultaneously enforcing pre-commencement notices under the substantive provisions of the repealed Enhancing Online Safety Act 2015 (Schedule 3 Items 12-14).

Developers of Content Filtering Technology

Entities engaged in manufacturing, developing, or updating content filtering software are granted specific statutory protections. Under the amended Criminal Code Act 1995, their activities remain exempt from certain telecommunications offences, provided their development work aligns strictly with an industry code or standard registered under Division 7 of Part 9 of the Online Safety Act 2021 (Schedule 2 Items 59 and 68).

Members of the Public and Active Complainants

Australian children, or adults acting on their behalf, who had unresolved cyber-bullying or intimate-image complaints under the old Act are spared the administrative burden of refiling. Their active complaints are legally transformed into complaints under the Online Safety Act 2021 (Schedule 3 Items 4-10), ensuring continuity of protective intervention.

Litigants and Information Seekers

Parties seeking access to government records are affected by the curtailed scope of the Freedom of Information Act 1982. The Australian Communications and Media Authority (ACMA), the eSafety Commissioner, the Classification Board, and the Classification Review Board are exempt from disclosing online content scheme documents under these amendments (Schedule 2 Items 81-91), limiting the information available to journalists, litigants, and researchers.

The Act establishes transitional duties and preserves historical rights to ensure a stable legal environment during the regulatory transition:

Duty of Continued Compliance with Legacy Notices

Recipients of active regulatory notices issued under the repealed Enhancing Online Safety Act 2015 owe a continuing duty of compliance. Under Schedule 3 Items 12, 13, and 14, pre-commencement social media service notices, end-user notices, and removal notices remain in force. Despite the repeal of the primary Act, the legacy enforcement provisions, review mechanisms, and penalty frameworks continue to apply to these specific notices as if the repeal had not occurred. This prevents a "regulatory holiday" for platforms that were subject to active directives at the time of the transition.

Right to Civil Immunity and Damages Protections

The Act preserves the historical civil immunities of platforms and individuals who complied with the instructions of the eSafety Commissioner under the old regime. Schedule 3 Item 15 dictates that legacy protections from civil proceedings continue to apply to any acts done in compliance with pre-commencement requests, social media service notices, end-user notices, or removal notices. Furthermore, the eSafety Commissioner, their delegates, and staff retain absolute protection from liability for damages for acts or omissions done in good faith under the repealed provisions of either the Enhancing Online Safety Act 2015 or the Broadcasting Services Act 1992 (Schedule 3 Item 16).

Criminal Law Exemptions for Regulatory and Development Activities

The Act preserves and updates specific exemptions from criminal liability under the Criminal Code Act 1995. Individuals assisting the eSafety Commissioner in the performance of functions under Part 9 of the Online Safety Act 2021 are exempt from criminal offences related to handling objectionable online material (Schedule 2 Items 59 and 68). This protection extends to developers of content filtering technology, provided they are operating in compliance with registered industry codes or standards.

Temporal Limits on Retroactive Liability

The Act establishes clear temporal boundaries regarding which content can be subject to the eSafety Commissioner's powers under the Online Safety Act 2021 (Schedule 3 Item 11):

Cyber-bullying Material (Social Media and Electronic Services): Powers apply only if the material was provided after 1 July 2015.
Cyber-bullying Material (Designated Internet Services): Powers apply only to material provided after 23 January 2022.
Intimate Images: Powers apply only if the image was provided after 1 September 2018.
Adult Cyber-Abuse and General Material: Powers under Division 4 of Part 3 and Part 7 of the Online Safety Act 2021 apply exclusively to material provided after 23 January 2022.

The Act alters the enforcement landscape by increasing penalties and linking administrative non-compliance directly to criminal prosecution:

Escalation of Carriage Service Penalties

The Act significantly increases the criminal penalties under the Criminal Code Act 1995 for offensive or harassing online conduct:

Section 474.17(1) (Using a carriage service to menace, harass or cause offence): The maximum term of imprisonment is increased from 3 years to 5 years (Schedule 2 Item 64).
Section 474.17A(1) (Aggravated offence): The maximum term of imprisonment is increased from 5 years to 6 years (Schedule 2 Item 65).

The Civil-to-Criminal Escalation Mechanism

The primary enforcement mechanism introduced by the Act is the statutory link between civil penalties and the aggravated criminal offence under section 474.17A. If an individual is prosecuted for an underlying carriage service offence, the prosecution can establish the aggravated offence by demonstrating that three or more civil penalty orders were previously made against the person under the Regulatory Powers (Standard Provisions) Act 2014 (Schedule 2 Item 66). These civil penalty orders must relate to:

Contraventions of subsection 75(1) of the Online Safety Act 2021 (failing to comply with a social media service notice); or
Contraventions of section 91 of the Online Safety Act 2021 that relate to removal notices given under section 89.

This mechanism changes the risk profile for individuals and operators who repeatedly ignore administrative removal notices. Once three civil penalty orders are registered against a person, any subsequent offensive carriage service use automatically exposes them to the higher criminal sentencing threshold of 6 years' imprisonment.

Preservation of Legacy Penalties for Historic Non-Compliance

For pre-commencement notices, the Act preserves the legacy penalty regimes. If an operator failed to comply with a social media service notice, end-user notice, or removal notice prior to the transition, the enforcement action is prosecuted under the old penalty provisions of the Enhancing Online Safety Act 2015 as if it had not been repealed (Schedule 3 Items 12-14). This ensures that historical non-compliance is penalised under the rules in force at the time of the infraction.

The Act operates as a transitional and consequential conduit, modifying several key federal statutes to integrate them with the Online Safety Act 2021:

                                 ┌───────────────────────────────────────────────────┐
                                 │ Online Safety (Transitional Provisions and        │
                                 │ Consequential Amendments) Act 2021 (No. 77, 2021) │
                                 └─────────────────────────┬─────────────────────────┘
                                                           │
         ┌─────────────────────────┬───────────────────────┼───────────────────────┬─────────────────────────┐
         ▼                         ▼                       ▼                       ▼                         ▼
┌──────────────────┐      ┌─────────────────┐     ┌─────────────────┐     ┌──────────────────┐      ┌─────────────────┐
│ Broadcasting     │      │ Criminal Code   │     │ Freedom of      │     │ Interactive      │      │ Crimes Act 1914 │
│ Services Act     │      │ Act 1995        │     │ Information Act │     │ Gambling Act     │      │ (Part 2         │
│ 1992             │      │ (Schedule 2)    │     │ 1982            │     │ 2001             │      │ Contingent)     │
└────────┬─────────┘      └────────┬────────┘     └────────┬────────┘     └────────┬─────────┘      └────────┬────────┘
         │                         │                       │                       │                         │
         ▼                         ▼                       ▼                       ▼                         ▼
Repeals Schedule 5;       Raises carriage         Exempts "online         Updates content           Updates electronic
amends Schedule 7         service abuse penalties scheme material"        filtering codes           service definitions
to remove legacy          to 5 & 6 years;         from FOI access         to point to Pt 9          to align with the
online content rules.     links to civil orders.  to prevent abuse.       of the OSA 2021.          OSA 2021.

Broadcasting Services Act 1992

The interaction here is corrective. The Act purges the Broadcasting Services Act 1992 of its historic role in regulating internet content. It repeals Schedule 5 entirely (Schedule 2 Item 30) and strips Schedule 7 down to a set of bare definitions, renaming it "Content services definitions" (Schedule 2 Items 33-53). References to ACMA's internet-related regulatory codes are deleted (Schedule 2 Item 14). This separation establishes the eSafety Commissioner as the sole statutory authority for online safety, leaving the ACMA to focus on traditional broadcasting media.

Freedom of Information Act 1982

The Act inserts a protective shield into the Freedom of Information Act 1982. By amending Schedule 2, Part II, Division 1, it exempts the ACMA, the Classification Board, the Classification Review Board, and the eSafety Commissioner from disclosing "exempt online content scheme documents" linked to functions under Part 9 of the Online Safety Act 2021 (Schedule 2 Items 81-91). This prevents the FOI Act from being exploited to access or spread restricted class 1 or class 2 materials.

Criminal Code Act 1995 and Crimes Act 1914

The Act aligns the criminal law with the new administrative reality. It amends definitions in the Crimes Act 1914 and the Criminal Code Act 1995 to point directly to the Online Safety Act 2021 (Schedule 2 Items 57, 58, 62). Part 2 of Schedule 2 introduces contingent amendments to the Crimes Act 1914, updating the definitions of "account" and "electronic service" in section 3ZZUK. These amendments were contingent on the commencement of the Surveillance Legislation Amendment (Identify and Disrupt) Act 2021, coordinating the interaction between police disruption powers and online safety definitions.

Contingent and Non-Commencing Interactions

The Act displays complex temporal sequencing. Part 3 of Schedule 2 contained amendments to the Export Market Development Grants Act 1997 contingent on the non-commencement of the Export Market Development Grants Legislation Amendment Act 2020. Because those 2020 amendments did commence before the Online Safety Act 2021, this specific part never came into effect (s 2(1) Table Item 5). This demonstrates how transitional legislation manages overlapping legislative schedules. Conversely, Part 4 of Schedule 2 successfully amended the Online Safety Act 2021 to replace references to the "Federal Circuit Court of Australia" with the "Federal Circuit and Family Court of Australia (Division 2)" upon the commencement of the Federal Circuit and Family Court of Australia Act 2021 (Schedule 2 Items 110-112).

As a transitional and consequential act, No. 77 of 2021 was drafted to execute specific, point-in-time statutory amendments and govern the shift between two regulatory regimes. Its amendment history is defined by its enactment structure and commencement schedule:

Bill Introduction and Assent

House of Representatives: The Bill was introduced on 24 February 2021.
Senate: The Bill was introduced on 17 March 2021.
Royal Assent: The Act received Royal Assent on 23 July 2021, becoming Act No. 77 of 2021.

Commencement Phases

The Act did not commence all at once. Instead, its schedules were keyed to the commencement of other primary pieces of legislation (s 2(1)):

Sections 1 to 3: Commenced on 24 July 2021, the day after Royal Assent.
Schedules 1, 2 (Part 1), and 3: Commenced on 23 January 2022, in lockstep with the commencement of the Online Safety Act 2021.
Schedule 2 (Part 2): Commenced on 23 January 2022, immediately after the commencement of the online safety provisions and the Surveillance Legislation Amendment (Identify and Disrupt) Act 2021.
Schedule 2 (Part 3): This contingent part was drafted to amend the Export Market Development Grants Act 1997 if the Export Market Development Grants Legislation Amendment Act 2020 had not commenced. Because the 2020 Act did commence first, Part 3 of Schedule 2 never came into effect.
Schedule 2 (Part 4): Commenced on 23 January 2022, reflecting the structural merger of the Federal Circuit Court and the Family Court of Australia.

No post-enactment amending bills have modified the text of Act No. 77 of 2021 itself, as is typical for consequential amending instruments which spend their legal force upon executing changes to other acts.

The Online Safety (Transitional Provisions and Consequential Amendments) Act 2021 has not itself been the subject of reported judicial interpretation or constitutional challenge in the superior courts of Australia. This absence of direct litigation is expected, given the administrative and consequential nature of the instrument.

The litigation risk associated with transitional legislation generally focuses on the validity of actions taken during the transition period or challenges to the transfer of administrative powers. By including clear saving provisions in Schedule 3, the legislature minimised these risks:

Immunities: The continuation of civil and criminal immunities under Schedule 3 Items 15-17 protects both private actors and the eSafety Commissioner from retrospective litigation for actions taken under the old regime.
Continuity of Office: Schedule 3 Item 1 preserves the continuity of the eSafety Commissioner's appointment, preventing administrative law challenges based on the validity of the Commissioner's office during the transition.
Complaint Migration: The explicit statutory migration of active complaints (Schedule 3 Part 2) reduces the risk of procedural fairness challenges from complainants or respondents regarding the eSafety Commissioner's jurisdiction over pre-commencement conduct.

Any substantive litigation regarding online safety enforcement has occurred under the primary Online Safety Act 2021 or the legacy Enhancing Online Safety Act 2015, rather than this transitional framework.

For compliance professionals, legal counsel, and platform operators, this transitional Act contains several subtle legal traps:

The Retrospectivity Trap by Service Category

One of the most complex aspects of the Act is how it handles historical content. Under Schedule 3 Item 11, the date a piece of content was uploaded determines whether it falls under the eSafety Commissioner's jurisdiction. However, these dates vary significantly depending on the category of the service and the nature of the material:

A platform classified as a "designated internet service" is exempt from cyber-bullying complaints regarding any material hosted prior to 23 January 2022. However, if that same platform is classified as a "social media service" or "relevant electronic service," it can be forced to remove cyber-bullying material uploaded as far back as July 2015. Compliance teams must accurately categorize their services to understand their liability for older content.

Dual-Regime Compliance for Pre-Commencement Notices

Schedule 3 Items 12, 13, and 14 create a dual regulatory environment. If an operator was served with a social media service notice, end-user notice, or removal notice before 23 January 2022, they cannot apply the newer procedures or appeal mechanisms of the Online Safety Act 2021 to that notice. Instead, they must comply with and resolve the notice under the repealed provisions of the Enhancing Online Safety Act 2015. Compliance departments must maintain operational protocols for both the old and new regimes to manage notices issued during this transition.

The Aggravated Criminal Liability Threshold

Under the amended section 474.17A of the Criminal Code, individual operators or users face a significant escalation in criminal exposure. If three civil penalty orders are issued against an individual under the Regulatory Powers (Standard Provisions) Act 2014 for failing to comply with online safety removal notices, any subsequent carriage service offence is elevated to an aggravated offence (Schedule 2 Item 66). This transition from civil to criminal exposure occurs automatically once the three-order threshold is met. Compliance officers and legal advisors must track these civil orders closely, as a third order dramatically changes the risk profile for associated individuals.

To ensure compliance with the transitional framework, organizations and legal practitioners should implement the following operational steps:

Categorize Services and Map Historical Content

Determine the correct statutory classification for your service (e.g., social media service, relevant electronic service, or designated internet service) under the Online Safety Act 2021. Map this classification against the temporal thresholds in Schedule 3 Item 11 to identify which parts of your historical database are subject to the eSafety Commissioner's enforcement powers.

Establish a Dual-Track Notice Management Protocol

Audit all active regulatory notices. Segment notices based on their date of issue:

Pre-23 January 2022 Notices: Process, appeal, and resolve these notices using the legacy frameworks of the Enhancing Online Safety Act 2015 and the old Broadcasting Services Act 1992 provisions (Schedule 3 Part 4).
Post-23 January 2022 Notices: Process these under the new Online Safety Act 2021 protocols.

                    ┌──────────────────────────────┐
                    │ Receive Regulatory Notice    │
                    └──────────────┬───────────────┘
                                   │
                      Is Notice Pre- or Post-
                          23 January 2022?
                                   │
                    ┌──────────────┴──────────────┐
                    ▼                             ▼
         ┌────────────────────┐        ┌────────────────────┐
         │ Pre-23 Jan 2022    │        │ Post-23 Jan 2022   │
         └────────┬───────────┘        └─────────┬──────────┘
                  │                              │
                  ▼                              ▼
         ┌────────────────────┐        ┌────────────────────┐
         │ Apply legacy EOSA  │        │ Apply modern OSA   │
         │ 2015 procedures &  │        │ 2021 standards &   │
         │ review pathways.   │        │ appeal mechanisms. │
         └────────────────────┘        └────────────────────┘

Implement a Civil Penalty Order Tracker

Because three civil penalty orders under the Regulatory Powers (Standard Provisions) Act 2014 trigger aggravated criminal liability under section 474.17A of the Criminal Code, organizations must track any civil litigation or penalty orders issued against their officers, employees, or the corporate entity itself. Legal counsel must flag any second civil penalty order as a critical risk, given that a third order removes the safety buffer against criminal prosecution for subsequent carriage service offences.

Align Content Filtering with Registered Codes

If your organization develops, manufactures, or updates content filtering software, you must ensure that these activities comply with an industry code or standard registered under Division 7 of Part 9 of the Online Safety Act 2021. This alignment is required to maintain your exemptions from criminal carriage service offences under the Criminal Code (Schedule 2 Items 59 and 68).

Update FOI and Data Disclosure Workflows

Public authorities, such as the eSafety Commissioner, ACMA, and classification boards, must update their internal freedom of information procedures. Staff must be trained to identify and withhold "exempt online content scheme documents" under the amended Schedule 2 of the Freedom of Information Act 1982, protecting class 1 and class 2 materials from public disclosure.

Deep Dive

What it does

Current sections