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| ===Disclosure Notices=== | | ===Disclosure Notices=== |
| If the Commissioner believes "on reasonable grounds" that a provider of a service covered under this Act has "information about the identity" or "contact details" of an end-user of it and that this information is "relevant to the operation of this Act, they may issue a written notice demanding the provider give it to the Commissioner (194). If the provider fails to do so they can be sued for 100 penalty units (195). There is no right against self-incrimination but information submitted cannot be used against them in a civil or criminal action except if the action is for giving false or misleading information (196). | | If the Commissioner believes "on reasonable grounds" that a provider of a service covered under this Act has "information about the identity" or "contact details" of an end-user of it and that this information is "relevant to the operation of this Act, they may issue a written notice demanding the provider give it to the Commissioner (194). If the provider fails to do so they can be sued for 100 penalty units (195). There is no right against self-incrimination but information submitted cannot be used against them in a civil or criminal action except if the action is for giving false or misleading information (196). |
| ==Your Rights==
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| You have:
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| * no right against self-incrimination;
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| * no right to defend against a notice as expeditiously as one can be filed;
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| * no right to sue the Commissioner or any other "protected person";
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| * a right to "a reasonable amount of compensation" if any property is taken;
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| * a right to "implied freedom of political communication";
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| * a right to preemption of inconsistent State and Territory laws.
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| ===No Right Against Self-Incrimination===
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| See [[#Disclosure Notices]] and [[#Reporting]].
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| ===No Right to Expeditious Self-Defense===
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| If you're the target of cyber-bullying or cyber-abuse material, it's easy to file a complaint and the Commissioner does all the legal work for you. By contrast, if you're the recipient of a removal notice, there is no way to explain or defend yourself as easily as you can file a complaint, though the whole power of the Commonwealth be marshaled against you, expect by appeal to the Administrative Appeals Tribunal, which places the burden on you. Although the Tribunal aims to "make our review process accessible, fair, just, economical, informal and quick"<ref>https://aat.gov.au</ref>, will it be quick enough for the 24-hour deadline of a removal notice?
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| ===No Right to Sue the Commissioner===
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| You cannot sue any person for anything done in "good faith" in making a complaint, or filing a removal notice (221). You cannot sue the Commissioner or their delegate for any "act in good faith done" under this Act (222). The Commissioner and other "protected persons" including the Classification Board are not subject to criminal proceedings for collecting, possessing, distributing, delivering, copying, or doing anything else to material pursuant to this Act (223).
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| ===Right to Just Compensation===
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| Section 51 of the Australian Constitution provides that the Commonwealth Parliament has power to make laws about "the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws". Accordingly, if property is not acquired on "just terms", the Act mandates the Commonwealth to pay "a reasonable amount of compensation" to any person whose property is taken, and gives the Federal Court and the Supreme Courts of the States and Territories the jurisdiction to decide on what that amount is if the owner and the Commonwealth are unable to agree (224).
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| As this section is one of the sections of the Constitution most fruitful of litigation, even a simplified outline of what "just terms" would be is beyond the scope of this analysis. The reader is referred to [https://nla.gov.au/nla.obj-4243638 Quick & Garran], widely regarded as the premier commentary on the Australian Constitution.
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| ===Right to Freedom of Political Communication===
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| The High Court of Australia (or federal supreme court) has held that sections 9 and 24 of the Constitution, requiring that the "people" elect Senators and Representatives, imply a right to freedom of political communication<ref>[http://classic.austlii.edu.au/au/cases/cth/HCA/1992/46.html Nationwide News Pty Ltd v Wills <nowiki>[1992]</nowiki> HCA 46]</ref>. If a provision of this Act violates that right, then that provision is void (233).
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| ===Right to Preemption of Inconsistent State Law===
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| Hosting services and ISPs are not liable, civilly or criminally,under State and Territorial laws and common-law rules for content they host or carry, respectively, that they did not know about. Crucially, this provision says nothing about services covered under this Act. It says nothing about Federal law. The Minister is also free to withdraw this exemption from liability at any time (235). Although its number is very close, in everything else it is highly different from Section 230 of Title 47 of the US Code<ref>See my open letter on [[It's Not Section 230 of the Communications Decency Act]].</ref> Section 230's only question is "did you post this?". Section 230 covers all "interactive computer services", all services that provide access by multiple users to a computer server or the Internet and provides that "No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section"<ref>[https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title47-section230&num=0&edition=prelim 47 USC 230]</ref>. This section asks also "did you know about it?" thereby requiring hosts and ISPs to prove a negative. It is limited in scope, benefit, and certainty, and will not be of much use.
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| ==Notes== | | ==Notes== |
| <references /> | | <references /> |