Wednesday, 16 June 2021
Online Safety Bill 2021, Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021; Second Reading
The bills before us today, the Online Safety Bill 2021 and the Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021, establish a framework to regulate harmful online content in Australia. This is an extremely important issue that the Australian Greens acknowledge needs to be addressed. But it should be addressed carefully and in a considered fashion, and our submission is that the government is not addressing it in a careful enough way or in a considered enough fashion.
I want to be clear that the Australian Greens do support the establishment of a framework that provides for the quick take-down of inappropriate online content in Australia. I also want to be clear that the Australian Greens condemn the online bullying and the online abuse of Australians, including child abuse and the non-consensual sharing of intimate images. These are important issues. It is necessary that we reform the law in these areas but it is equally necessary that we get it right.
Before I speak about the details of the bills themselves, I want to speak about the process the bills have gone through to get to where they are today. Unfortunately, I have to say that the government is ramming these bills through this parliament without adequate consideration and adequate scrutiny. For example, the government flagged its intention to table the bills before consultation on the exposure draft had closed. The bills were then introduced into the House with just a few technical amendments to the exposure draft before the around 400 submissions to the exposure draft were made public. The bills were referred to the Environment and Communications Legislation Committee the next day, to report just two short weeks later. Then the government sought to have the bills listed as non-contro so that they could be quickly and quietly waved through the Senate. Then the government moved to exempt the bills from the usual requirements that regulate how quickly bills can be brought on for debate in the Senate. As an example of the indecent haste with which the government has operated, these bills were so rushed that the government is needing to use amendments to fix typos in the original bill. These bills, which are intended to protect people from cyberbullies, from cyberabuse, from the non-consensual sharing of intimate images and from violent and extremist materials—commendable objectives—are being rushed through this place. We want the parliament to get these bills right, and we believe we represent in that case most Australians, who want this parliament to get these bills right.
The Australian Greens do not support the bills in the current form in which they are presented to the Senate. We are aware of the amendments that have been circulated by the government that, if passed, would address some of the concerns the Greens have raised in regard to this legislation. We still have concerns about the huge regulatory and discretionary powers these bills confer on the eSafety Commissioner, a single person who is not elected by the Australian people to that position. We are concerned about the lack of oversight, in some cases, of the eSafety Commissioner.
These bills, I think everyone would agree, provide significant powers to the eSafety Commissioner, but, as drafted, provide for limited appeals against decisions of the commissioner. No internal review process was established in the bills as originally drafted and presented, and the risk there was that people or businesses who were acting lawfully and were adversely affected by decisions of the commissioner could have been left with no business or no income while potentially costly appeals slowly worked their way through the AAT and, ultimately, the court system.
Again, we acknowledge that the government has cobbled together an amendment to provide for an internal review process, but we note that this amendment doesn't actually create, of itself, an internal review process. What it does is require the commissioner to create such a process. So, in a way, the parliament is being asked to sign a blank cheque in regard to the creation of that process, because we have no possibility of knowing what kind of process the eSafety Commissioner will establish as we stand here and debate this bill today.
The problem for the government, of course, is that, because of its self-imposed deadlines and the fact that those were so short, it hasn't actually had the time to come up with such a review mechanism to include the provisions of that mechanism in this legislation. Effectively, it has handballed it off into the never-never. As well as lacking a quick and practical review and appeal process with appropriate remedies, the bills, as tabled, also lack robust transparency reporting. Again, the Greens acknowledge that this has been addressed to some extent by the government's amendments. As I said, there's the use of amendments to correct typos in the original legislation—and, for folks playing along at home, the amendment that the government has tabled changes 'cyber-bulling' to 'cyber-bullying'. Of course that needs to be fixed up, but the fact that we needed an amendment to fix up a typo is symptomatic of the rush to legislate in an extremely important but also extremely complex policy area.
These bills test the intention of a person posting online material by inquiring whether an ordinary, reasonable person would think it likely that the material was intended to cause harm. But this test considers no evidence other than the material itself. This is potentially problematic, because the context around violent imagery and content is crucial to understanding the purpose of disseminating that content and the level of any harm caused.
The Australian Greens also have significant concerns about the bills' powers being used, despite some limited protections, to block and take down public-interest news or campaigns that involve violent imagery—for example, campaigns against police brutality. The eSafety Commissioner has made public comment with regard to some of these issues, and we acknowledge those comments and thank her for them. But the person who is currently the eSafety Commissioner will not be the eSafety Commissioner forever, and it should be incumbent on parliaments to make sure that we legislate not just with one particular person in one particular position in mind but with a clear-eyed focus on the need to make sure that protections will exist past the incumbency of any one person in any particular position.
Under this legislation, the commissioner will be guided by the National Classification Code. That code is currently being reviewed and it doesn't provide appropriate classifications for online media. Therefore, in the view of the Greens, it is not fit for the purposes of this legislation. Classifications based on the code may capture non-violent sexual activity, including nudity and implied or simulated sexual activity, as well as materials considered unsuitable for a minor to see. The concern that the Greens have in this area is that the bills fail to differentiate between actual harm and subjective, moralistic constructions of harm. This would allow the commissioner to act as a moral censor and the commissioner's powers to be weaponised by people and organisations with moral or political agendas. Again I acknowledge comments made by the commissioner with regard to these issues, and again I point out that the person who is currently the eSafety Commissioner will not be the eSafety Commissioner forever.
The bills will also, inevitably, lead to online platforms resorting to automated processes based on algorithms and artificial intelligence to identify and remove content that could attract penalties. The use of AI and algorithms in similar circumstances in places like the US has been extremely controversial, to say the least, and we are concerned that the use of those technologies could lead to disproportionate outcomes, like blanket bans, even if that is not the intent of the commissioner. The use of algorithms and AI will also risk importing racial bias into the regulation of Australia's online content ecosystem. We know that that is a risk because that is exactly what has happened in the US under similar controversial laws, such as the Fight Online Sex Trafficking Act, the FOSTA, and the Stop Enabling Sex Traffickers Act, the SESTA.
While a complaint based framework for the non-consensual sharing of intimate images is very important and absolutely supported in principle by the Australian Greens, we want to make sure, again, that this complex area is legislated with full care and full consideration. The definition of an intimate image provided by these bills does not clearly state whether it applies at the moment an image is taken, which could have serious implications for the utility of the scheme for transgender folk in Australia.
Of particular concern to the Greens and many submitters to the Senate inquiry is the potentially devastating effect the bills will have on sex workers and adult content creators operating lawful businesses that provide lawful products and services, many of whom have migrated online as a result of the COVID-19 pandemic. We are worried about the potential for this framework to be used to drive people from the internet back into the streets or ultimately into insolvency. We are concerned about the unintended consequences that could be harmful to sex workers and adult businesses and to the broader community. Under the bills, as argued by Scarlet Alliance, sex workers will become more vulnerable as they potentially lose access to income, safety tools and strategies and vital peer connections. We are also concerned that the bills fail to promote the maximum safety and privacy protections that they could.
I say again: the Greens absolutely commend the stated objectives of these bills, to keep women, children and the broader Australian community safe in online environments. We absolutely support women's and children's rights, and we have staunchly opposed extremism and radicalisation, particularly right-wing extremism and radicalisation. But we need to make sure that we don't protect one set of rights by trampling over other rights. Bills this significant, targeted at problems this complex, should receive full and proper scrutiny in this place. That is what the government, unfortunately, is seeking to deny. That is why the Greens will be moving a second reading amendment, calling for the bills to be withdrawn and redrafted to take account of the many and significant concerns raised by submitters. I now move the second reading amendment standing in my name:
Omit all words after "That", substitute "the bills be withdrawn and the Senate:
(a) notes the Government's rush to legislate; and
(b) calls on the Government to redraft the bills to take account of concerns raised by submitters to the Environment and Communications Legislation Committee inquiry into the bill, including:
(i) use of the National Classification Code, which is currently under review,
(ii) the potential for elements of the bill to be used against lawful online content and content creators,
(iii) inadequate rights of review for businesses and individuals whose content is wrongly blocked or removed, either by the Commissioner or online platforms,
(iv) inadequate transparency and accountability regarding discretionary decisions made by a single, unelected officer,
(v) powers covering restricted access/encryption services, and
(vi) potential significant and detrimental effects on sex workers".
We will also move other substantive amendments in committee, including for a statutory review of the bill's powers in two years. I will speak more to those amendments when the time comes.
In conclusion, I say again: these bills are incredibly important and incredibly significant, but they deal with an extremely complex area of policy. This chamber should have taken the time to make sure that we get it right and that we avoid, to the greatest extent possible, any unintended consequences flowing from this legislation. The Australian Greens are disappointed that this chamber has not been given that opportunity.