Senate debates

Monday, 19 June 2017


Enhancing Online Safety for Children Amendment Bill 2017; Second Reading

1:03 pm

Photo of Scott LudlamScott Ludlam (WA, Australian Greens) Share this | Hansard source

I rise this afternoon to add a couple of comments in a similar vein, actually, to those of Senator O'Neill on the Enhancing Online Safety for Children Amendment Bill. I say at the outset that the Greens are supporting this bill. I think it is a worthwhile initiative, but it is nowhere near as far reaching as the kinds of reforms that I suspect this parliament is going to need to engage in before too long.

Online harassment, or cyberbullying, for the older generation, has been an issue for as long as people have been interacting online. When the Joint Select Committee on Cyber-Safety conducted its inquiry quite a few years back now—in 2011 or 2012—into safety for kids online, the No. 1 issue that came right through the middle of all the others was bullying. One of the most powerful pieces of evidence that we took—because there was a panel of young people who were invited to give their views, not directly to the committee but through a mediator—was that kids do not really talk about cyberbullying. Appending the word 'cyber' to things is what this parliament does, not what kids do. There is a continuum of bullying, where no distinction, really, is being made. The kids who are most likely to be getting bullied, harassed and picked on in the playground are the same kids who are likely to have this horrific behaviour following them home after school. There was no distinction there at all that had been made. We need to be a bit careful about singling the communications medium out for something special. There is human nature at play here, and it is a play in ordinary social space as it is online.

But there is a problem here, and it goes beyond some of the measures of people educating each other about conduct online. In fact, it goes a long way beyond that. There are extreme levels of hostility directed at individuals or groups by other people, and most often focusing on any aspect of the target that differs from the white male norm. If senators in this place, particularly male senators, think that that may not be the case, I offer you a little thought experiment. This is something you can do any time you like. Retweet one of your female colleagues, if she has had the temerity to have an opinion, for example, even on the vote that passed just this morning on removing the GST on tampons and women's sanitary products. The level of venom and vitriol and threatening behaviour directed at women online is of a whole different level. I am reminded of this retweeting my colleague Senator Hanson-Young, Senator Rhiannon, or Senator Milne when she was leading the Australian Greens. It is a whole different level of venom perpetrated by people. It can be quite confronting for men to understand just how much harsher the online environment can be. The tools are fairly standard: threats of violence, personalised imagery, relentless repetition. This stuff can follow you around. If you enjoy online spaces and social networks and the social contact with people that they bring it can be incredibly intimidating, and also quite difficult to have accounts pulled. That is the anonymous stuff that we are talking about. Then there is doxing—release of private, personally identifying information, and it can escalate to publication of targets' home and work address. That just adds and makes more physical the kind of menace that can be levied at people.

As to the objective of this kind of harassment, there is no-one size fits all, but bullying a target into submission or silence is a frequent outcome, particularly women. There is a chilling effect there. Sometimes women will just withdraw from the space because of the level of hostility that has been brought to bear. I am not saying that this kind of harassment and violence threats are not directed at men—they are. But I am acknowledging that there is a very steep difference in the way that women are treated, and probably twice as much for kids and for girls. Only the most simplistic understanding of the importance of free speech would place a greater importance on the ability of an emboldened and frequently anonymous few to speak without consequence over the ability of a much more diverse but potentially less empowered crowd to participate in speech or social conduct online at all.

All efforts to address harassment have to address what are sometimes pitched as competing notions—protection and censorship or support and silencing. In the Greens we have had frequent run-ins, going back years, with government frontbenchers on targeted imposition on people's digital rights. So we have to very carefully scrutinise any legislation that affects digital rights coming from this government. The perpetrators of online harassment use very powerful communication mechanisms of the internet to intimidate and silence and harass people. One of the best ways to combat coordinated online harassment is counterspeech or the kind of social support that you get offline if someone is being victimised or bullied, using the same communications tools to organise and call out harassers' behaviour, and ensuring that minority groups and already vulnerable people are not limited in their ability to respond and defend themselves.

Some of that is whether the social networks, nearly all of them based offshore, have appropriate mechanisms for that kind of community self-protection. When somebody is levying hate speech, threats of violence and threats of sexual harassment or rape and beaming that into a particular person's time line, how long does it take for those accounts to be pulled and suspended and for that person to be removed from the net? It is actually incredibly variable. The big social media corporations—I do not understand why—have had to be dragged kicking and screaming at various stages to provide those defensive tools for users of their networks so that people are not harassed into silence. So that is one tool. I recognise that government has only the indirect ability to promote those sort of tools on various social platforms, but it is something, quite clearly, that government has a stake in and government can do.

Another key way to combat online harassment is to have strong protections for online anonymity. People who are being harassed are sometimes facing domestic violence, human rights abuses in extreme cases or other consequences for speaking out. Anonymity allows them to be online without fear of exposure and a threat of physical harm. We have to ensure that anti-anonymity or antiprivacy policies are not created and used to further expose victims to harm. I recognise also that anonymity cuts both ways. There are social networks where anonymity is prohibited and people do operate under their real names and still behave in incredibly vile and damaging ways.

What this proposed bill will do—and this is the reason why the Australian Greens are supporting it, obviously—is expand the 'soft' functions of the commissioner to broadly cover online harassment. So we get that the government are scaling it out so that the commissioner's activity can legitimately cover more than just kids. That is fair enough. We think there is a need to ensure that there is support, education and protection for everyone using the internet.

The proposed changes, though, do not expand the complaints system for online harassment to include everyone. They also do not introduce offences for non-consensual sharing of intimate images. This is the issue that Senator O'Neill addressed in her contribution, and I substantially agree with the way that she put it. Legislation on non-consensual sharing of intimate images or 'revenge porn' has been pushed off to individual states to handle in a rather more piecemeal manner. Some states, including Victoria, South Australia and WA, have moved to criminalise it in a domestic violence context. The ACT Greens have draft legislation for it, as have the UK and New Zealand. Here in our own parliament I acknowledge our colleagues in the other place Ms Terri Butler and Mr Tim Watts proposed a private member's bill to criminalise the act. That was as long ago as 2015, with the Senate committee in February 2016 recommending that non-consensual sharing of intimate images be criminalised. The work has been done in this parliament and so it is something of a surprise, then, to not see it in this bill.

The current laws relating to the use of a carriage service to menace, harass or cause offence are insufficient to protect people from intimate-image sharing and are subject to grey areas where intent to cause those impacts must be proven. Quite frankly, the burden of proof should be the other way round. It really should. We know the government is thinking about it because there has been from Senator Fifield and the communications portfolio a discussion paper put out that closes on 30 June. It proposes a regime of steeply increased civil penalties for this kind of behaviour. So we know that it is on the government's mind, but I have to wonder why on earth a substantial reform like that is not in this bill. What better opportunity was there to have got that done? We will want to take a close look at the legislation when it comes forward, but I do not think it is going to be all that controversial to steeply increase the penalties and provide a more nuanced legal framework for prosecutions.

Any legislation in this place obviously has to very carefully address safety concerns without opening up Australians to censorship or invasion of privacy. Online harassment is often targeted at people who are already vulnerable, whether they are kids or older, whether they are women or whether they be racial or religious minorities. We have to be very careful to ensure that any laws aimed to protect these people are not instead used to further silence and expose them.

In an article in the week before last, Senator Brandis made some sweeping and completely wrong assertions that young Australians do not care about privacy. He thinks that young people of the 'Facebook generation', as he calls them, are too busy spending their time instagramming their smashed avocados to care about privacy. But, as the cartoonist Jon Kudelka rather colourfully put it last week, there is a difference between instagramming your lunch and being forced to have your stomach pumped.

People are living more and more of their daily lives online, and I think we should all be able to assume that that is a safe place to congregate as much as a town square should be a safe place to congregate. The government, therefore, should be looking for more ways to uphold and increase protection of people's rights and safety as we migrate online. A broader commissioner for e-safety is a good start. I must admit that we voted for the establishment of the eSafety Commissioner going back a couple of years. I was a little bit unsure at the time as to whether it was going to be a fairly superficial addition, but I think we can all agree here that it has been a worthwhile appointment and that they do good work. That is why the broadening of their mandate is certainly a good start. But we also need to ensure, at the same time, that people's de jure rights are not compromised. The Prime Minister has made it fairly clear that he wants to further erode those rights while simultaneously opening up citizens, businesses and governments to fraud, theft and attack, actively making them less safe online. I am talking, of course, of one of the key mechanisms for protecting privacy and security online: encryption.

That is why—and I know this is out of scope of today's bill, but I did want to put it on the record—the Greens proposed a digital rights commissioner to work within the Australian Human Rights Commission, whose mandate would be precisely these kinds of issues. It is a specialised area and it is easy to go wrong. We believe that one of the things that the Human Rights Commission could usefully do would be to have somebody in there with specific expertise on digital rights, on the online space and on how people can protect themselves online. And that is a role that we established and outlined prior to the last election. It is not an enormous cost at all, considering what is at stake for people, and we think it would complement the existing important work that the Human Rights Commission does.

The role that we proposed would involve, among other things, scrutinising legislation, directly advising governments and departments, and a general public advocacy role. If anything, the last week has shown that we desperately need it. We look forward to the government bringing forward legislation. We urge them not to delay. A lot of work has been done on the opposition benches, on the cross bench and—I would argue—probably within government as well. We believe there is no need to delay more sweeping reforms any longer, but in the meantime we are happy to commend this bill to the chamber.


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