Wednesday, 16 June 2021
Online Safety Bill 2021, Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021; Second Reading
I rise today to speak to the Online Safety Bill 2021 and the Online Safety Bill (Transitional Provisions and Consequential Amendments) Bill 2021, which, as we know, seek to create a new online safety framework for Australians, an updated regulatory framework that consolidates and builds on the existing legislative scheme in our nation for online safety. In the Labor Party, we have a strong track record of supporting online safety for Australians and we support these bills. We support measures to consolidate, update and enhance online safety laws for Australians. For many years, Australians have been protected by laws to support online safety, and it is important that these laws be kept up to date.
The Online Safety Bill responds to the independent review of online safety laws conducted by Lynelle Briggs, which was reported to government in October of 2018. It's clear that Australia's online safety laws should be brought together in one modernised act and that industry and government should be less reactive and more responsive when it comes to online safety in our nation. So we support this principle of consolidating existing safety database online safety laws into this new framework. For example, the Online Safety Bill retains and replicates provisions in the Enhancing Online Safety Act 2015, which protects Australians from online harms such as the non-consensual sharing of intimate images, a scheme that Labor is proud to have led calls for. It also reflects a modernised online content scheme to replace schemes in schedules 5 and 7 of the Broadcasting Services Act 1992, in order to address harmful online content such as refused-classification material, and it updates various elements, including by setting new industry benchmarks. We support new elements of the Online Safety Bill, including the creation of a novel complaints based removal notice scheme for cyberabuse perpetrated against an adult and the articulation of a core set of basic online safety expectations to improve and promote online safety for Australians.
However, that said, we very much acknowledge that there are some significant concerns with the Online Safety Bill as drafted, and we indeed share some of these concerns. There are concerns around the process and the government's handling of the development of this bill. There was a long delay—years, in fact—in releasing the exposure draft of the legislation, only to be followed by the rushed introduction of this bill into the parliament only eight business days after consultation on the exposure draft concluded. This has significantly undermined confidence in relation to the consultation process. A number of stakeholders were concerned that submissions had not been considered properly and are unsure as to the operation of this bill.
There are also significant concerns as to the substance of this legislation. These are points that have been well made by stakeholders, including concerns about consultation, transparency and review mechanisms among other things. We note there are some concerns with provisions in the Online Safety Bill which are, in fact, already the law of the land here in our nation, and it's disappointing that the government was unable to foster a clear, shared understanding of the elements of this bill that consolidate existing longstanding law.
We in Labor have sought to have constructive good-faith negotiations in addressing concerns with the Online Safety Bill. We did not oppose these bills in the House, on the basis that the government amendments would be forthcoming. Since then, we are have engaged with the government in a constructive good-faith way in order to gain an understanding and address concerns with these bills. Overall, we report that this engagement with government has been productive. We have appreciated the attention of the minister and his staff, as well as officials of the department and the commissioner and her staff, to Labor's concerns and suggestions. Some of the concerns have been addressed with proposed government amendments to the bill, as well as the supplementary EM. We welcome these amendments and understand a further addendum to the EM will be forthcoming, which we also welcome.
In conjunction with government amendments, some of Labor's concerns have been addressed with clarification from the government as to the operation of the bill. This has been useful. Hopefully it has served to clarify the government's understanding of the regime as well. However, some of our concerns have not been taken up and addressed by government and, therefore, we will be moving amendments in this place to strengthen transparency and review oversight of the commissioner in administering the online safety framework. In the spirit of this bipartisanship, in which online safety has historically been approached in this place, we encourage the government to support or at least not oppose these amendments.
We acknowledge the various bill scrutiny processes that have run and note the report of the Senate Scrutiny of Bills Committee, as well as the report of the Parliamentary Joint Committee on Human Rights, both of which made constructive suggestions. We accept the need for the commissioner to have flexibility in administering the framework. In return, however, it is important the government accept the commensurate need for greater transparency, oversight and review. There is an important balance to be found here between free speech and the protections against certain kinds of speech, and this can be complex. We are concerned that this bill represents a significant increase in the eSafety Commissioner's discretion to remove material without commensurate checks and balances.
The government is correct to expect digital platforms to offer more in terms of transparency but, indeed, so must the government be prepared to provide transparency around decision-making, particularly on matters that engage with human rights in our country. So while supportive of a scheme for adult cyberabuse, Labor finds it curious that a government that has made repeated attempts to repeal Section 18C of the Racial Discrimination Act on the grounds it unduly restricts free speech, despite the availability of defences in 18D, is now seeking to pass a bill that empowers the eSafety Commissioner with discretion to determine matters of speech in relation to adult cyberbullying without greater checks or balances or operational clarity. Labor is concerned that the adult cyberabuse scheme could, in the wrong hands, be used to stifle legitimate debate and freedom of expression, given the test for adult cyberabuse is material that is menacing, harassing or offensive.
I draw attention now to Dr Anne Aly's—the member for Cowan—remarks during the debate in the House. She said:
Imagine a scenario where somebody is trolling with racist remarks and gets called out for it, gets called a racist, and the person, the troll, takes offence to that and reports it and instead of the racist remark being removed, the remarks that are calling out racism get removed instead … It's a very likely scenario that somebody who is trolling another individual with racist commentary and gets called out for that racist commentary can claim that they are being bullied and harassed and take action against the person who has called them out.
Also consider the case of John Barilaro, the New South Wales Deputy Premier, who is reported to have pursued YouTube comedian Friendlyjeordies with charges of stalking and intimidation. According to reports, detectives from New South Wales police fixated persons unit, acting on a complaint by Barilaro, arrested Kristo Langker at his family home in Dulwich Hill on 4 June and charged him with two offences. He was charged with two counts of stalking and intimidating with an intent to cause fear or physical or mental harm. Here we see that, given the provisions in the adult cyberabuse scheme go to related concepts of menace, harass or offend, it is simply not beyond the realm of contemplation to imagine a politician asserting that a journalist, a satirist or a comedian might fall foul of these provisions in the adult cyberabuse scheme, even with clause 233 on the implied freedom of political communication. So we believe there can and must be greater transparency for review and oversight to ensure that this scheme is working to get the balance of human rights and freedom of expression right.
We put these concerns to the government during the Senate inquiry and during the debate in the House as part of good-faith negotiations and we welcome the government amendments that have been circulated which strengthen transparency and review, with greater detail in annual reporting as well as an internal review process. But we believe these need to go further, and that's why we are moving amendments, including for an ACMA review. We'll move an amendment to provide a pathway for independent review by ACMA where, with full discretion, ACMA may review decisions of the commissioner and report to the minister, with the report tabled in parliament. The commissioner is an officer of ACMA, and ACMA provides such a review pathway for decisions of the ABC and SBS, so this would be an important oversight mechanism. We'll move an amendment to provide greater detail in the commissioner's annual reporting to include information referrals—including to industry and end users, which account for much of the commissioner's approach—as well as categories of harm, dealt with in complaints, formal notices and informal referrals akin to the categories supplied by the Human Rights Commission in the reporting of complaints and investigations.
We'll move amendments to formalise the advisory committee arrangements for the commissioner. Currently, the commission has an advisory committee constituted on an informal basis, with representatives from academia, industry and civil society. As with ACMA, we believe that these should be formal in law to provide multistakeholder engagement and oversight. We appreciate that the make-up of the current committee could be improved with expertise to inform matters that engage with human rights and freedom of expression, such as the Human Rights Commission, ethnic and religious groups, disability groups, consumer groups, public-interest media and communications law experts. We think there needs to be independent review of the novel adult cyberabuse scheme in and after its first year of operation, with the whole bill subject to review in three years. We will also seek to move amendments to formalise consultation requirements around restricted access systems under the Online Content Scheme, as well as consumer representation in the development of industry codes and standards. This aligns with other provisions of the bill.
In conclusion, we support steps to improve the online safety of Australians. I'm going to jump to the moving of my second reading amendment, and to that end I move the second reading amendment as circulated in my name:
At the end of the motion, add: ", but the Senate:
(a) notes that:
(i) it has been almost three years since the October 2018 Report of the Statutory Review of the Enhancing Online Safety Act 2015 and the Review of Schedules 5 and 7 to the Broadcasting Services Act 1992 (Online Content Scheme) by Lynelle Briggs AO recommended a new Online Safety Act,
(ii) since then, the Minister for Communications, Urban Infrastructure, Cities and the Arts has repeatedly spruiked the non-existent Online Safety Act in response to concerns about online harms, including online hate speech and racism in Australia following the Christchurch terrorist atrocity and graphic online content in the wake of a self-harm video circulating on social media,
(iii) the Minister was slow in releasing the exposure draft of legislation for consultation then rushed the introduction of the bill into Parliament, eight business days after consultation on the exposure draft concluded, which undermined stakeholder confidence in the consultation process,
(iv) the Review of Australian classification regulation is delayed and has fallen out of step with the bill, and
(v) the Government still has not released the report of an expert working group, convened by the eSafety Commissioner and participated in by industry; and
(b) calls on the Government to release the report of the expert working group convened by the eSafety Commissioner so that the broad range of stakeholders supportive of online safety may have the benefit of the work".