Thursday, 4 April 2019
Criminal Code Amendment (Sharing of Abhorrent Violent Material) Bill 2019; Second Reading
I present the explanatory memorandum to this bill and move:
That this bill be now read a second time.
I might commence by starting this speech by paying tribute to all those who suffered and lost their lives and lost loved ones as a result of the Christchurch terrorist attack on Friday, 15 March 2019. The victims, their families and their loved ones, the Muslim community in New Zealand and Australia and around the world, and New Zealanders who have been shocked and saddened by that vile act know, of course, that Australia stands with them. The horror of that act was brought to the world in real time and the platforms that were used to connect with the world were turned against us to amplify the shooter's message of hate and intolerance.
The relevant footage was broadcast for 17 minutes without interruption and it was another 12 minutes after that point in time that the first user report on the original video was received by Facebook. The material was live-streamed on Facebook and available on that platform for almost an hour and 10 minutes until the first attempts were made to take it down. Simply put, we find that unacceptable.
The Australian government expects that internet platforms should take responsibility for preventing the spread of abhorrent violent material online. The internet is not an ungoverned space. Together, we must act to ensure that perpetrators and their accomplices cannot leverage online platforms for the purposes of spreading their violent and extreme fanatical propaganda. These platforms should not be weaponised for evil purposes.
The Criminal Code Amendment (Sharing of Abhorrent Violent Material) Bill represents an important step in this process. It will ensure that hosting and content services expeditiously remove abhorrent violent material and notify the Australian Federal Police when it appears on their platforms. Internet platforms must take the risks posed by the spread of abhorrent violent material online seriously. The new offences will therefore be accompanied by criminal penalties.
With respect to the removal of abhorrent violent material, it is clear that live-streaming and other video platforms can and will continue to be abused to spread messages of hate and terror, and this cannot be allowed to continue. The bill addresses this risk by requiring the providers of online content and hosting services, whose services can be used to access abhorrent violent material, to ensure the expeditious removal of that material. This will apply when the material is reasonably capable of being accessed within Australia, regardless of whether the content or hosting service is providing from within or outside of Australia. It is important to ensure that this offence is limited to the worst types of material that can be shared online.
Platforms will only be required to ensure the expeditious removal of audiovisual or audiovisual material that is recorded by the perpetrator or an accomplice and that depicts specified abhorrent acts and violent conduct. This is defined to mean acts of terrorism, murder, attempted murder, torture, rape or kidnapping.
The bill does include defences to the offence in certain circumstances, including for law enforcement purposes where the material relates to a news or current affairs report that is in the public interest, for court and tribunal proceedings where the accessibility of the material is for lawful advocacy purposes and where the accessibility of the material relates to research or artistic works created in good faith.
These offences will attract penalties of up to $2.1 million or three years imprisonment, or both, for individuals, and bodies corporate will face penalties of up to $10.5 million or 10 per cent of the annual turnover of the body corporate. There should be no mistake made. These very serious penalties are warranted.
Internet platforms provide immense value to the Australian community, but recent events have shown that they can also be used for great harm and as a platform to spread violent and dangerous ideologies. These penalties will send a clear message that the Australian government expects the providers of online content and hosting services to take responsibility for the use of their platforms to share abhorrent violent material.
Notably, proceedings for an offence against these provisions would require the written consent of the Attorney-General, which acts as an important safeguard against inappropriate prosecutions and allows a wide range of circumstances to be taken into account before proceeding to any prosecution.
With respect to the eSafety Commissioner's new notice power, the new offence will be supported by a new power by the eSafety Commissioner to issue a notice advising that a content or hosting service is being used to host abhorrent violent material. This will put the service on notice that it is being used to disseminate the relevant material. Once a notice has been given, that service will have no excuse for failing to comply with its obligation to remove that material as expeditiously as possible. As such, the effect of the notice will be to create presumptions that the operator of the service was reckless as to whether the abhorrent violent material could be accessed on their service and that the material in question was abhorrent violent material. Both of these presumptions can be rebutted if the operator of the service is able to produce evidence to the contrary.
Finally, it is critical that Australian law enforcement agencies are able to promptly investigate conduct depicted in abhorrent violent material that may be occurring in Australia and is being shared online. The bill, therefore, introduces a new offence of supplying to the providers of internet hosting or content services who fail to refer details of abhorrent violent material that records or streams conduct that has occurred or is occurring in Australia to the AFP. This referral must take place within a reasonable time after the provider has become aware of the existence of the material.
The providers of internet hosting and content services are uniquely placed to bring this material to the attention of law enforcement authorities. Prompt referrals will assist the AFP not only to investigate past incidents but also to track events that are unfolding in real-time and potentially minimise the harm generated from ongoing access to this material. In practice, it is likely that providers will become aware of a vast array of abhorrent violent material that is already in the public domain. It would serve no practical purpose to refer such material to the AFP and would create a significant administrative burden on all parties. It is, therefore, a defence to this obligation if the provider reasonably believes that the details of the material are already known to the AFP. The referral of material involving serious violent criminal conduct is very important. Failure to comply will be a serious matter and will attract penalties of up to $168,000 for an individual and $840,000 for a body corporate.
In conclusion, the events of Christchurch have shown us that internet platforms can be used to spread messages of hate and terror, and this bill forms an important part of the Australian government's response to these events. Internet platforms have the means to prevent the spread of abhorrent violent material and will face criminal sanction if they do not work expeditiously to remove such material. Separately, the government has announced a task force that includes industry stakeholders to examine immediate and longer-term actions with a focus on prevention, transparency and response times.
Leave granted for second reading debate to continue immediately.
The terrorist atrocity committed in New Zealand on 15 March was on unspeakable act of violence committed by a coward against a defenceless group of worshippers at prayer. I take this opportunity to once again condemn, on behalf of Labor and all Australians, that act of terrorism that has brought so much death and so much pain to the people of New Zealand—and to so many people and to so many communities beyond New Zealand. I say again that an attack on any religion is an attack on all religions; it is an assault on our common humanity. We feel a national shame that an Australian was the perpetrator of this act of hate-fuelled violence in which 50 innocents were murdered. But his extreme right wing ideology manifested last month in his act of cowardice of evil does not represent Australia or our values and beliefs.
The attacker's aim was to spread terror and to divide our community, and it was this goal—a common thread in terrorist atrocities, whatever their particular ideology—that led the perpetrator to record his atrocity and to seek to circulate it online. At the time, we called on all Australians not to share that awful footage, not to watch it and not to do anything that might in any way serve the objectives of the terrorist who committed this inhuman act of evil. But there is more we can do, as members of the Australian parliament, to stop the spread of terrorist materials produced by the perpetrators of these atrocities.
That brings me now to the bill before the House—the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Bill 2019. This bill represents the Morrison government's attempt to respond to the problem of terrorists seeking to spread recordings of their crimes through social media and other online platforms. Labor believes that the social media companies must do more in preventing the dissemination of material produced by terrorists showing off their crimes. For that reason, Labor will—despite reservations I will explain shortly—be supporting the passage of this bill.
But I must be clear: this bill is clumsy and flawed in many respects. And that is in par, because the government has been too cowardly to hold an adequate number of parliamentary sitting days before the election this year, so the parliament is being forced to deal with this bill on a ridiculous timetable. And it is in part because the government has been too inept to properly consult with the Australian technology industry and media companies, and the community, about the impacts of this bill on them.
When the Morrison government realised just how difficult it was for them when this parliament sits—in large part because of how many of their failures and scandals come to light through the scrutiny the parliament of Australia provides—they shamefully cut the number of days this parliament would sit before the election. In November last year, this government decided that the parliament would only sit for 10 days in 2019 prior to the election being called. Today is only the 10th sitting day of this House in 2019.
The member for Sturt declared that the sitting calendar issue was an example of 'inside-the-bubble issues'. What arrogance to believe that the government could predict with confidence that no events would occur over some six months before the election that might require this parliament's attention. What arrogance to suggest that laws that are supposedly urgent, like this one, are just 'bubble issues' the Liberal Party can't be bothered taking the time to deal with properly. What a self-serving and irresponsible dereliction of their responsibilities to act as the government of this nation. One of the consequences of that reckless and cowardly decision of the Morrison government to drastically shorten the parliament's time this year is that important and difficult laws such as this bill have to be rushed to such an extent that they cannot be properly drafted, consulted on or debated in this place.
Labor always seeks to work in a constructive and bipartisan manner on matters of national security. We have the track record to prove it through our constructive engagement on some 20 national security bills introduced by this government over the last 5½ years. In particular, in the last 5½ years, government and opposition members of the bipartisan Parliamentary Joint Committee on Intelligence and Security have worked together to make well over 300 bipartisan recommendations to change, improve and strengthen those 20 national security bills. On each occasion, the bill presented to the parliament required amendments to improve its operation and to deal with unintended consequences the government had not foreseen. This important process in which national security bills are reviewed by the intelligence committee has not occurred with this bill.
I say again: Labor always seeks to work in a constructive and bipartisan manner on matters of national security. But we are not bipartisan on the trashing of the proper processes that are needed to get our national security laws right. Labor received this bill just after 5.00 pm on Monday this week. It was rushed through the other place last night without any debate. If it is to become law, it must pass this House by the end of the day. This is no way to approach lawmaking in this country, and the precedent this government has set, not just on this bill, is atrocious. Not even New Zealand, where the Christchurch atrocity occurred, has attempted to make this change in such a short time frame. However, because Labor agrees that the streaming of the Christchurch terror attack has shown that there is a need for measures to prevent such conduct occurring in the future, Labor will not stand in the way of the Morrison government's clumsy attempt to deal with this issue, as set out in this bill.
But I do want to briefly outline some of the key problems that have come to light regarding these laws that will need to be addressed through an urgent committee process. I emphasise that these are just some of the problems that we've been able to identify in the short time we've had this bill. The bill could potentially undermine Australia's important security cooperation with the United States by requiring US internet providers to share content data with the Australian Federal Police in breach of US law. The bill may encourage proactive surveillance of internet users by social media platforms and of the vast volumes of user-generated content being uploaded at any given minute. So, at the same time we're worried about service providers like Facebook intruding on the privacy of users, this bill calls on those same platforms to constantly be analysing the content of every communications user across their platforms.
The bill could have an adverse impact on legitimate whistleblowing activity. The bill draws a seemingly arbitrary distinction between a television station that broadcasts terrorist content on the one hand and a website hosting terrorist content on the other. A television network could broadcast abhorrent violent material over the airwaves and not be captured by this bill, whereas Twitter could be prosecuted if a user tweeted the same video. Poor and inconsistent drafting is likely to have other negative implications for the effective operation of these laws.
Finally, despite the government announcing that a key purpose of this legislation was to enable the jailing of executives of multinational social media giants who breach its provisions, the bill does not do this. The framework in this bill represents a fundamental shift for online companies which are, generally speaking, platforms geared towards facilitating the sharing of content rather than being structured around monitoring for the removal of content or proactive notification to third-party law enforcement agencies. The lack of consultation on this bill has meant that the government has not even considered the practical difficulties and significant compliance costs that these new laws will impose on a large number of companies.
While Labor agrees that the tech giants like Facebook must do more to stop the use of their platforms to spread abhorrent terrorist materials, hundreds of much smaller companies are also caught by this bill, many of which may not have the resources or technical capabilities required to comply with the onerous new regulation imposed by this bill. It is also unclear what additional resources either the AFP or the eSafety Commissioner have been provided in order to manage the potential influx of notifications from online companies. The government has not said.
All these problems have been clearly explained to the government, but these explanations have apparently fallen on deaf ears. This is no way to govern. But, in the few days we've had this bill, Labor have been listening and, if elected, a Shorten Labor government will immediately move to address these and other problems identified with this bill as a matter of priority. Specifically, in order to provide this bill with the scrutiny it should have had and in order to ensure that the problems I've just outlined are dealt with, if a Shorten Labor government is elected in May, we will refer this law to the Parliamentary Joint Committee on Intelligence and Security for consultation and comprehensive review. Neither proper consultation nor proper review has occurred as this chaotic and desperate government careens towards the election. There needs to be proper consultation with not just the social media sector but also traditional media, who are also caught up by this bill and whose legitimate journalism and online news sites will also be impacted on by these laws.
Finally, we need to consult with our allies and other like-minded nations across the world because there is little point in Australia taking unilateral actions that do not mesh properly with existing regulatory frameworks around the world. For example, there is scope to adopt the approach taken by the European Union in response to the 2016 Brussels terrorist attack. In response to that atrocity, in May 2016, the EU agreed with Facebook, Microsoft, Twitter and YouTube a code of conduct on countering illegal hate speech online. This code facilitates users to notify of illegal hate speech on social platforms, provides support to civil society in combating online hate speech and strengthens coordination with national authorities. Reviews of the code have indicated its success in helping to counter online hate speech and, recently, Instagram, Google+, Snapchat, Dailymotion and Jeuxvideo.com also announced their intention to join the code.
I want to close with one additional matter. The terrorist atrocity committed in New Zealand last month was clearly driven by an ideology of hatred founded in racial and religious bigotry. The sharing of the footage the gunman recorded was appalling, and we need to take steps to prevent it happening again. But the fundamental evil we are seeking to eradicate is not the sharing of recordings of murderous violence; it is the violence itself. All Australians know well the seeds of this violence lie in racist ideology, in racist hate speech and in the hate and fear that bigots, left unchecked, will spread.
For over 20 years, since it was enacted by the Labor government of Paul Keating, section 18C of the Racial Discrimination Act has drawn the line against racial vilification and protected our citizens and our society from the poisonous effects of racist hate speech. Yet, in the last five years, the Abbott-Turnbull-Morrison government has launched two separate attacks on section 18C, which former Attorney-General George Brandis infamously declared to the Senate was a Liberal government priority because 'people have a right to be bigots, you know'. It is astonishing that any Australian government would work to give a green light to racist hate speech in support of an imagined right to be bigots rather than working to defend the right of all Australians to dignity and to safety.
Labor was appalled by the actions of the Liberals in attacking section 18C, and we stood with thousands of individuals, legal experts and organisations as well as community groups from across our nation to successfully defend section 18C from these reckless ideological attacks by the Liberals. Labor believes that this Liberal government should accept that Australians do not want more racism and more bigotry in our community and commit to never seeking to water down our race-hate protections again. The Prime Minister should likewise insist that his coalition partners, the Nationals, put One Nation last. He cannot distance himself from the party he's in government with. It's not hard. He's the Prime Minister, and he should try to lead for a change.
In contrast to the Morrison government's glaring weakness on the issue of racism, it is Labor's unequivocal view that racism has no place in modern Australia. Labor believes that the Australian government should be setting an example by standing up against bigotry rather than fighting for the rights of bigots and doing dirty deals with racist parties like One Nation, as the Liberals have been doing.
We all grieve with New Zealand in the wake of the Christchurch massacre, and that's been no more so the case than in Melbourne where the significant Muslim community has been devastated by the events at Christchurch and the tragedy, as has our broader community. The community has come together to express its solidarity with our Muslim sisters and brothers and with New Zealand. I take the opportunity to place that on the record here, again, on behalf of myself, the Melbourne community and the Greens.
In the wake of the Christchurch massacre, it's clear that social media must no longer be an unregulated and lawless place where degrading and horrifying content can be posted and shared, spreading like a poison that harms whoever it touches. Graphic and horrifying footage of innocent people being murdered caused untold harm and furthered the terrorists' evil aims for every second that it remained online, and Facebook took over an hour to respond. The Greens have called for a comprehensive response and review of how our media deals with terrorist acts, violent acts and acts of white supremacy like we saw in Christchurch.
Today's abhorrent material bill, the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Bill 2019, was Australia's opportunity to comprehensively address the issue. As I said, the Greens were one of the first voices calling for new laws to protect our multicultural communities and hold the mainstream media and social media giants to standards that reflect their role in a modern democracy. I think it would be fair to say that certainly in this place, in this chamber, there would probably be unanimous agreement that the broadcasting in the way that we saw during the Christchurch massacre was abhorrent and should have been stopped and needs to be stopped in the future. The question is: how do we do that in a way that we make sure it does not have unintended consequences? This bill, and this way of doing it, is not the way to ensure that we strike the right balance, because we don't know whether or not this bill in fact does the job the Attorney-General tells us that it's doing and we do not know whether or not it goes far enough in stopping that kind of hate speech from being broadcast. But we also don't know if it goes too far in the other direction and captures forms of speech or reporting that most people would not want to be criminalised, because this is being rushed through.
If you have a look at the Senate Hansard, you will find that this bill was introduced into the Senate at 9.13 last night and passed at 9.13 last night. From the Greens' perspective, the Labor opposition may say they've had a version of this since Monday, but we haven't. And the parliament hasn't. When we are dealing with something that could potentially—as the front pages of various papers today suggest—criminalise journalism, that should have significant scrutiny. Does it do that? I don't know. The parliament probably doesn't know. We've got a very significant bill that is being rushed through before this parliament rises, and Labor is going along with it. That should not occur. When something as significant and important to the Australian people as responding to the abhorrent material that we saw, but also regulating future journalism, comes before this parliament, we should be very loath to make decisions about that without putting it to scrutiny. As I said, the Senate had a few minutes to debate this last night. It got pushed through. We didn't get a chance to look through it, and other senators probably didn't get a chance to look through it. When we read on the front pages of the papers today that this bill might have a series of unintended consequences, we should pause to make sure that we're doing our job properly.
The Labor opposition and the shadow Attorney-General—and this isn't a personal comment about the shadow Attorney-General at all; this is about the opposition's position—just got up and called the bill 'clumsy and flawed' and called the process 'appalling'. You would think that what they would then do is say, 'We're going to refer the bill to an inquiry.' The shadow Attorney-General just gave a good and eloquent speech about why this bill deserves further scrutiny but then said that Labor and the government are going to side together to ram this through without us having had the opportunity to consult with stakeholders to determine whether there are unintended consequences. That is not the way that parliament should function. And now we're here in the House being asked to put through a bill that's only been introduced into the House today on the same day. That is not right. As I said, I expect you would get 100 per cent unanimous agreement across this chamber for the prohibition of broadcasting abhorrent material, but everyone would also be alarmed if we were about to pass something that had unintended consequences.
I, for one, am not prepared to take the government on face value that a bill that they didn't even have the courtesy to show to us until yesterday evening in the Senate and is being introduced in the House today is all completely fine and has no unintended consequences. That is not a way to run a government. When we have the opportunity to say, 'We're not going to say no to the bill; we're just going to ask for it to go to inquiry,' that is something the opposition should grab with both hands. I heard the opposition say that if they win government they will send the bill to an inquiry. But, firstly, what if they don't? And, secondly, what if One Nation has control of the Senate after the next election and there are some proposed sensible changes that can't get through, because they can't get through the Senate? That is why we need to give this bill scrutiny now, before we pass it. It's not right that, as often happens on the last day of parliament, we're asked to pass through really important legislation without even the chance to read it or go and talk to our stakeholders about it. When we see things on the front page of the paper that say, 'Hang on; parliament should pause for a moment, because there might be unintended consequences,' and we're not given the chance to do that, that is not right. And the problem with rushing something through is that it potentially undermines the legitimacy of the bill further down the track. Who knows if there are errors in this bill that might stop truly abhorrent content from being broadcast? We just don't know.
So I come back to where I started. Of course—apart from myself, the Greens and, I suspect, many others—we want to see a proper approach to regulating social media and we want to ensure that that kind of horror and terror that we saw is not allowed to be broadcast. No-one would quibble with that, but we want to make sure we're doing it properly and that we don't catch legitimate journalists in its wake.
That is why I move:
That all words after "That" be omitted with a view to substituting the following words:
"whilst not declining to give the bill a second reading, the House refers the bill to the Parliamentary Joint Committee on Intelligence and Security for inquiry and report no later than 1 August 2019".
That is an eminently sensible timetable. We could still have this legislation pass expeditiously, if that's what the parliament wants to do. The shadow Attorney-General just stood up and identified three or four big problems with the bill. Well, this would give us a chance to go and fix those. The bill could still be passed, if that was parliament's will, but we would be a bit more confident that it has no unintended consequences—and who knows? We might even close loopholes that might be there in the first place, because this government has actually rushed it. We could actually strengthen it and ensure that this kind of terrible material doesn't find its way onto Facebook or into social media in the future.
This committee is not necessarily our committee of choice—there's no Greens representative on this committee—but it's one that, as a joint committee, could continue to operate and could sit soon after the election. We could be back here within a very short period of time, within what is effectively a matter of weeks, and pass the bill, if that's what we wanted to do. I do hope that this amendment gets support, and especially gets the support of the opposition, because it's an opportunity to say, 'Yes, the bill can pass, but let's make sure we're doing our job right.'
I second the amendment. I'd firstly like to convey my sincere condolences to the people of New Zealand for the tragedy in Christchurch, which has been the catalyst for the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Bill 2019. The live streaming of this atrocity is abhorrent to us all. However, the proposed amendments to criminal legislation to deal with the live streaming of violent material on social media could have serious unintended consequences, as we've heard here today, and, in the interest of responsible governance, should not be rushed through the parliament. The bill was announced as a reaction to the horrific Christchurch terrorist attacks, which were streamed live across social media. There is no question in my mind about the intent of this bill.
The Law Council has said that, while steps should be taken to ensure social media is not weaponised to promote hatred and violence, proper consultation must occur to ensure fair and effective legislation. Social media companies must do more to avoid this form of violent content being uploaded and viewed, but making social media companies and their executives criminally liable for the live streaming of criminal content is a serious step which requires careful consideration.
The legislation clearly defines relevant offensive content. The problem is regarding notification. The IT industry is deeply concerned about issues around notification. There are processes already in place to act on notifications, and algorithms are currently being developed to find offensive content so that IT companies can act to remove it. Anyone can upload anything online, and the IT companies don't have to be notified that it is there. Moreover, what does 'expeditious' mean? There is no clear definition of this time line imposed on an IT company, which may not have received a notification of the abhorrent content. Considering that the executors of social media platforms who do not remove the abhorrent material expeditiously can be punished by three years imprisonment or fines equating up to 10 per cent of a platform's annual turnover, the repercussions are great. What does 'expeditiously' mean? Is it five minutes? Is it 15 minutes? Is it an hour? Is it a day? The legislation does not define the meaning of expeditious.
Despite its best intentions, laws formulated as a knee-jerk reaction to a tragic event do not necessarily equate to good legislation and can have myriad unintended consequences. One such unintended consequence is that global IT platforms will bypass Australia to avoid being exposed to this risk.
A key concern with the bill as drafted is that whistleblowers may no longer be able to deploy social media to shine a light on atrocities committed around the world, because social media companies will be required to remove that content for fear of being charged with a crime. Social media can and has been used, including by media organisations and whistleblowers to draw attention to violent atrocities occurring overseas or criminal conduct by a foreign government, such as injuring or killing its own citizens. The legislation may have a chilling effect on the potential for social media users and media organisations who use social media providers to perform this important public service function. Whistleblowers may unfortunately be prevented from being able to tell these important stories through such providers. Similarly, this may influence the social media platforms and methods that media organisations are able to use to communicate important public interest pieces. If people on social media seek to shine a light on an atrocity or criminality, this is where the bill bites, as there is no defence for social media providers who choose not to remove violent content because the provider believes the material is in the public interest. So the bill could, in effect, lead to censorship of the media, which could undermine the very potential of the fourth estate to hold governments to account.
The Law Council has called for this legislation to be referred to a parliamentary committee for review and consultation. The shadow Attorney-General also said this morning that this should happen, and this is, indeed, the intent of this amendment. We need to consider how to provide a public interest defence for those who may be captured by the proposed offences but honestly believe on reasonable grounds that they are acting in the public interest in not removing particular material from social media in order to expose criminal content that should be brought to the public attention. Consideration could be had to modelling such a public interest defence of similar defences that already exist in other legislation, such as Commonwealth whistleblowing legislation or the Public Interest Disclosures Act 1994 New South Wales, which provides protection to public officials who report public sector wrongdoing in particular circumstances.
Any government or, indeed, any major party seeking to govern should be mindful of passing rushed legislation without consulting stakeholders, including the affected industry, or considering the broader implications. It is much better to get this legislation right than to pass flawed laws that will lead to unintended consequences. This bill should be referred to committee for consideration.