Brian Mitchell (Lyons, Australian Labor Party) Share this | Hansard source

I am pleased to have the opportunity to speak on the Online Safety Bill 2021 and the Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021. Members may recall that in recent weeks I've been making numerous calls for action to be taken against the foreign based website Etsy, which had on its platform abhorrent products promoting child sexual abuse, putting these products for sale alongside things like Father's Day gifts. I'm certainly on the side of cracking down on rogue internet operators who fail to uphold community standards.

Labor does support measures to consolidate, update and enhance online safety laws for Australians, and the bills do seek to create a new online safety framework for Australians—'a modern, fit-for-purpose regulatory framework that builds on the strengths of the existing legislative scheme for online safety'. For many years, Australians have been protected by laws to support online safety, and it is important these laws are kept up to date. To a large degree, the bills represent regulatory housekeeping by consolidating various online safety laws into one bill, with some updates, in response to Lynelle Briggs's independent review of online safety laws, which reported to the government in October 2018. So the government's had this for a while and has not acted with the speed with which it should have. Labor does support the aim of consolidating online safety laws into a new framework and new elements of the bill, including the creation of a new complaints-based removal notice scheme for cyberabuse being perpetrated against an Australian adult and the articulation of a core set of basic online safety expectations to improve and promote online safety for Australians.

Although the government has been spruiking this new Online Safety Bill as if it already exists—and it has been spruiking it for almost two years—it's just now that it's introducing a bill that addresses a recommendation of the Briggs review for a single, up-to-date online safety act. Unfortunately, even after all the time the government's had, it still doesn't have this bill quite ready to go. Labor are supporting it because we're taking the view that something's better than nothing, but this bill really is half cooked, and the government should have done a better job. It's a very important piece of public policy, and the government's just come at it almost as an afterthought. When asked about key operational aspects of this bill, such as for the novel adult cyberabuse scheme, even the eSafety Commissioner referred to it as a 'sausage' that is still being made, and that was as recently as last week. Last week, the eSafety Commissioner said the sausage is still being made. It's really not good enough.

Given the significant passage of time since the Briggs review reported, it is disappointing that the government has proved incapable of conducting a process that satisfies stakeholders in terms of both process and substance. A wide range of stakeholders still have valid concerns with this bill which the government has failed to address. Submissions to the Senate inquiry into the bill raised concerns about several matters that they argued have not been addressed and which some considered long overdue for reform, such as the functions, powers and oversight of the eSafety Commissioner, the clarity and breadth of the basic online safety expectations, and the public consultation processes associated with the bills, amongst other things.

I personally have some concerns about things like mission creep. We start out with good intentions on these things, and I do back this bill. As I say, it's not ideal but it's better than nothing. But I am concerned that, given the holes in this bill and the patent fact that it's going to need pretty quick revision pretty soon, there is a risk of mission creep, where what starts off with good intentions ends up being something a little bit more insidious. I have a background as a journalist. I would hate to think that the provisions of this bill would end up in any way impacting on the ability of journalists to report freely and openly in this country. Journalism, by necessity, often presents the public with confronting images. For example, who can forget that terrible image of George Floyd being kneed in the neck until he was dead? It's not beyond the scope of reason to think that somebody may well complain to an eSafety Commissioner in the future that that sort of imagery is abhorrently violent and should be caught up in the scope of this bill and taken down. I have very high regard for the current eSafety Commissioner, but she won't always be there. Who knows who will hold that position in the future? Who knows what qualifications they will bring and what ideological or political baggage they might have trailing behind them when they are given fairly extraordinary powers under this bill?

So I do have those concerns. I don't think those concerns are unwarranted, and I hope that, once this goes up to the Senate as part of that review process, it's taken on board a little bit more. We need to make sure that journalism and particularly the public interest are not caught up by bad-faith actors, people who make vexatious complaints to an eSafety Commissioner for either religious or ideological reasons or simply because they want content that they happen not to agree with taken down. So we need some more work done there.

Other significant matters of concern include how the bill interacts with the frameworks of safeguards put in place by the telecommunications assistance and access regime, as well as matters that interact with freedom of speech. That goes to some of the matters I've just raised. Finding the balance between free speech and protections against certain kinds of speech is a complex endeavour. It's not easy. We all like to think that we live in a free society with free speech. We don't have free speech mandated in our Constitution, unlike in the US, but we like to think that we have freedom of speech in this country. But it comes with obligations and responsibilities, and finding that sweet spot is a difficult endeavour.

We are concerned that this bill represents a significant increase in the eSafety Commissioner's discretion to remove material, without commensurate checks and balances. This is a key concern of mine: an unelected official is being given extraordinary powers over public information. As I say, this is being done with good intent—I don't question the government's intention on this—but an unelected bureaucrat is being given extraordinary powers, and I really think we need to look very closely at how that person is appointed, what qualifications they bring and also what oversight this parliament has. I am not a fan, personally—I can't speak for the Labor Party on this—of the executive having sole discretion over this. A minister having the hire and fire power over an eSafety Commissioner does not sit well with me. Finding that balance is important.

Whilst we are supportive of a scheme for adult cyberabuse, it's very curious that a government that has made repeated attempts to repeal section 18C of the Racial Discrimination Act on the grounds that it unduly restricts free speech, despite the availability of defences in section 18D, is now seeking to rush through a half-cooked bill that empowers the eSafety Commissioner with discretion to determine matters of speech in relation to adult cyberbullying without greater checks and balances or operational clarity. They've had this for two years. It's almost like they've just let it sit there and percolate, doing nothing, and now they're rushing it through the parliament not having done the checks and balances properly.

This government talks a big game about its expectations of social media platforms, but, to date, it has failed to do its job by updating Australia's online safety laws. While the government is right to expect digital platforms to offer more in terms of transparency—and I'm not a fan of the way those digital giants do their job; they need to do better—so too must the government be prepared to provide transparency around decision-making, particularly on matters that engage with human rights.

In their additional comments to the Senate inquiry, Labor senators recommended that the government consider further amendments to clarify the bill in terms of its scope and to strengthen due process, appeals, oversight and transparency requirements given the important free speech and digital rights consideration that it engages. Online safety is of increasing importance to all Australians as we spend more time online—it's just everywhere in our home lives and in business—and I urge the government to take the short amount of time it takes to get it right. You've had two years. I don't know why you're rushing it through now without taking account of the many complaints and many concerns that have been raised through the Senate process. Get it right the first time. Don't rush this through and then have to cobble it back together again with amendments over the next year, as you are doing with other bills. I think the biosecurity one comes to mind. You made a mess of that, and now the biosecurity amendment bill is coming back into the parliament. Get it right the first time.

Labor supports online safety and we do support these bills. The safety of Australians online, particularly children, is of paramount importance, so Labor will work constructively with the government to iron out concerns with these bills in time for debate in the Senate. But, in the meantime, Labor will not oppose these bills. We just implore the government: do better.

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