Senate debates

Monday, 19 June 2017


Enhancing Online Safety for Children Amendment Bill 2017; Second Reading

12:50 pm

Photo of Deborah O'NeillDeborah O'Neill (NSW, Australian Labor Party) Share this | | Hansard source

I am pleased to continue my remarks, which are directed at amending the Enhancing Online Safety for Children Act 2015 to broaden the function and the title of the statutory Office of the Children's eSafety Commissioner, which we broadly support. In my initial contribution to this debate last week I said that we have significant concerns about the failure of this government to provide the commissioner with additional powers, and we certainly do not believe that the bill, as it is being advanced in this form, is adequate for dealing with that very significant social problem, a problem that continues to grow—namely, the issue of revenge porn.

You do not need to be paying too much attention to what is going on in the online space to appreciate that women, particularly those with a significant public profile, are currently the targets of enormous abuse, threats and intimidation online. What happens to a woman going into a police station to complain both online threats, abuse and intimidation, sadly, can be a little bit of a lottery. There is a lot of research showing that the experience of women in this situation does indeed vary enormously, depending on which station you make the complaint at or depending on whom the officer on watch was at the time.

In this respect, changing to an e-safety commissioner with a general remit is valuable, because we have an important culture change task in front of us. We really need to get the message through to law enforcement and to policymakers that this kind of online behaviour can and indeed does have significant impacts that can be just as significant as if these threats, abuse and intimidation were actually happening physically in real life. This includes expanded responsibility to take a leading role in combating the non-consensual sharing of intimate images.

While we support the expansion in this bill we believe that the most appropriate approach, indeed the best approach, for dealing with revenge porn would have been to criminalise these acts some time ago. At the Commonwealth level Australian laws have failed to keep pace with the new way that technology is actually being used to cause harm, particularly to women. The law should have been brought up to date and must be brought up to date as a matter of urgency. It is in that area that I think this bill does not meet the standards that we believe should hold.

Revenge porn is one of the ugliest manifestations of the trend towards online abuse of women and it is important that we in this parliament, as policymakers, send a strong message to the community that the sharing of private sexual images without consent is wrong, and it is wrong in the clearest possible terms. The easiest way to achieve this message and its reception would be to enact Commonwealth legislation to criminalise the behaviour.

While historically we considered family violence and abuse to be physical, psychological and emotional, in the 21st century family violence has also gone digital and it has serious impacts on the mental health of victims. Revenge porn can be distributed via a wide range of methods, from texting private images to friends, colleagues or family members, through to publishing images on social media sites, and even uploading images to commercial pornographic websites. Indeed, it takes just four clicks on a computer to upload a photo to Facebook. That is how quick and simple it is to share an explicit photo of someone, without his or her consent. Four clicks is all it takes to maliciously rob a person of their privacy and their human dignity.

The mental and emotional toll of revenge porn is high. Victims experience increased anxiety, and the research suggests they experience this anxiety acutely when they are doing activities that will subject them to online scrutiny—for example, having something like this come up when they are applying for a job with the stress that potential employers might come across the material, which is frequently published with the names and contact details of the victims.

Private sexual images and the threat to share them are often used as tools to control, humiliate and abuse individuals. While this practice is commonly referred to as 'revenge porn', it is clear that the sharing of these images without consent or threats to share them occurs in a much wider range of scenarios than just a simple desire to inflict revenge. As the Sexual Assault Support Service recognises, revenge is not the only motive to consider. Perpetrators of the behaviour may seek notoriety or financial gain or believe that they are providing entertainment for others. Some perpetrators may intend to cause emotional harm to their targets and humiliate them, while others will give little or not thought to potential impacts. The problem of revenge porn is complex and not only limited to the publishing of sexually explicit material intending to intimidate or humiliate people in the context of a relationship breakdown.

Laws criminalising revenge porn have been slow to emerge. A leading expert in the field, Dr Nicola Henry, said image-based abuse—and that is the broader term rather than just revenge porn—has emerged so rapidly as an issue that inevitably our laws and policies are struggling to catch up. The law can often lag behind advances in technology, but in this instance that lag time is causing real harm in our community. The status of revenge porn legislation in Australia is patchwork at best. Currently there is no federal legislation that criminalises revenge porn or image-based abuse. Most states do not currently have legislative mechanisms in place to protect victims from cyberabuse of this kind.

South Australia and Victoria are the only two states that have passed revenge-porn-specific legislation. Victoria passed the Crimes Amendment (Sexual Offences and Other Matters) Bill 2014 in August 2014. It criminalises non-consensual sharing and also provides protection to young people who take and share images of themselves consensually. Western Australia passed the Restraining Orders and Related Legislation Amendment (Family Violence) Act 2016 to criminalise cyberstalking and revenge porn.

The general point here is that the Commonwealth Director of Public Prosecutions said that a Commonwealth offence targeting revenge porn would fill a gap within the exiting law. The Australian Federal Police said that uniformity in legislation so that they could investigate and charge perpetrators would be most helpful for police. There is plenty of advice, but the Turnbull government has delayed and delayed on this issue in a way that seems to me completely inexplicable.

There remains an urgent need for criminal penalties for offenders nationwide. RMIT and Monash University researchers surveyed close to 4½ thousand people about their experiences with image-based abuse. Their findings document the mass scale of victimisation and the impact it has on victims' lives. According to this research out of RMIT and Monash, one in five people who were surveyed had been victims of some kind of revenge porn. Young people age 16 to 19 were the most vulnerable, with one in three in that age group reporting some form of image-based abuse.

Minority groups were also found to be much more vulnerable, with one in two Indigenous Australians, one in two Australians with a disability and one in three LGBTIQ Australians reporting having suffered victimisation of this kind. Even the researchers themselves were surprised at the number of people who had their private sexual images distributed, taken without their consent or used against them in other ways. There is a clear need for parliament to send a very clear message to the general community that this behaviour is not only wrong but should attract a criminal sanction.

The study also found that women are more likely than men to be victims of image-based abuse by a former partner or intimate partner. Importantly, they are also more likely to fear for their safety as a result. Dr Anastasia Powell from RMIT, one of the lead researchers, noted:

Victims do report experiencing this as a form of … violation or sexual violence.

The researchers found that, upon discovering that their private images were publicised, victims felt that it constituted a violation of their sexual autonomy and dignity. This has obvious and difficult long-term repercussions. Overall, those who had suffered image-based abuse were almost twice as likely as nonvictims to report experiencing high levels of psychological distress.

This report, the first of its kind in Australia, recommends criminalising revenge porn at the federal level to provide cover for existing piecemeal state laws. It found overwhelming support for criminalising the distribution of private or invasive images without consent. Four in five of those surveyed agreed it should be a crime. Criminalising these acts would send a clear message that this behaviour will not be tolerated by this parliament or this country. If we change the law, this could be a first step in changing community perceptions of this conduct. The law can shape social norms and affect community attitudes, but it is up to parliamentarians like us to send the message that this behaviour is not accepted in the community. Commonwealth legislation on this matter will send a clear signal to young men and young women in Australia that this behaviour is just not on. The experts agree that we need to criminalise this behaviour now, and Labor calls on the government to act and to act now. Meanwhile, the Turnbull government just continues to talk about the problem of violence against women but fails to take adequate action.

This bill, sadly, is just another example of all talk and no action from the government. They have made no commitment to introducing or supporting Commonwealth legislation to criminalise this egregious behaviour. The government's excuse is COAG. Recently, indeed, the COAG Law, Crime and Community Safety Council released a national statement of principles relating to the criminalisation of non-consensual sharing of intimate images. However, even with this statement, there will still be no overarching Commonwealth law that can provide consistency across the nation, and there may be inconsistencies from state to state.

Labor went into the 2016 federal election promising Commonwealth legislation to criminalise revenge porn within the first hundred days of being elected. The Liberals did not step up and make a similar promise. Instead, their election commitment was a new complaints line. They are now devoting $4.8 million to developing a national online reporting tool to help counter the effects of non-consensual sharing of intimate images. While a new complaints process about so-called revenge porn is welcome, it is not in itself sufficient. There needs to be strong criminal law, making it clear that circulating nude pictures or videos of sex acts without someone's consent, or threatening to do so, is not acceptable. Labor will continue to ensure that so-called revenge porn is criminalised, including by the creation of appropriate Commonwealth offences. In the interim, we support the passage of this bill and commend the work of the former Children's eSafety Commissioner in driving cultural change, and the general powers of the body, in the community.

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.

1:16 pm

Photo of Skye Kakoschke-MooreSkye Kakoschke-Moore (SA, Nick Xenophon Team) Share this | | Hansard source

I rise to speak on the Enhancing Online Safety for Children Amendment Bill 2017. The bill seeks to amend the title of the act and the title of the statutory office of the Children's e-Safety Commissioner to reflect the broader role for online safety that the commissioner has had for some time, which goes beyond providing assistance regarding online safety for Australian children. The bill will insert a new definition of the expression 'online safety for Australians' and also make minor consequential amendments to five other acts to reflect the new title of the act and the title of the statutory office.

During Senate estimates in October last year, I asked about the name of the Office of the Children's eSafety Commissioner and whether it could potentially limit public perceptions about the issues the office assists with. I specifically mentioned the fact that adults at that time were not aware that they could go to the Children's eSafety Commissioner for assistance with concerns around illegal or offensive online content, the non-consensual sharing of intimate images and video or for general advice about how to manage technology risks and safety online. The minister conceded this point, and he acknowledged that he has increasingly referred to the 'eSafety Commissioner' in those terms. Shortly thereafter, the minister announced the government's decision to introduce such legislation and address the concerns I had raised during Senate estimates. The Nick Xenophon Team welcomes this decision.

The internet began in 1993 with admirable ideals about the free flow of information. Back then, little was known about the technology and less about its endless benefits and possibilities: information and news at our fingertips, e-commerce, the proliferation of social media and even live updates and videos from this chamber. But the internet can also be a dark and intimidating place, where people delight in throwing stones from computerised glass houses, acting with impunity as they engage in their digital diatribes. The anonymity, invisibility and online freedom the internet provides has stripped away societal standards and ethics and given way to a cyberwar of hate.

The World Wide Web has become weaponised with words hurled by the coward and bully who rages against women, ethnic and religious minorities, vulnerable children and the LGBTIQ community. Hate has gone viral. Leonard Pozner, who lost his son in the Sandy Hook massacre in America, has been hounded by internet trolls ever since. He recently said:

History books will refer to this period as a time of mass delusion. We weren’t prepared for the internet. We thought the internet would bring all these wonderful things, such as research, medicine, science, an accelerated society of good. But all we did was hold up a mirror to society and we saw how angry, sick and hateful humans can be.

The statutory office of the Children's eSafety Commissioner has been in place since 1 July 2015 to cater for the overwhelming need to protect children in the digital space, in part due to the tireless groundwork laid by leading e-safety advocate and member of the office's online advisory group, Sonya Ryan. Sonya has pioneered education and awareness of online safety for children for over 10 years following the death of her beloved daughter, Carly, at the hands of an online predator. The Nick Xenophon Team, along with Sonya, recently achieved a momentous milestone in honouring Carly's legacy, with the passage of the Criminal Code Amendment (Protecting Minors Online) Bill 2017 last week. The new law will make it easier for police to prosecute online predators, filling a gap in the Criminal Code and allowing the police to intervene earlier when a predator is preparing or planning to cause harm to a child, including when lying about their age. This law will be crucial in the defence against online predators, with the Office of the Children's eSafety Commissioner's own data revealing that in the 12 months to June 2016 nine per cent of teens and five per cent of children were contacted by strangers. I acknowledge the work of the government in getting this important legislation over the line. It is excellent to see those from all sides of politics finally unite for such an important cause. Importantly for the Nick Xenophon Team it shows the government recognises that in many cases in the online sphere the legislation is failing to keep up with community expectations.

There is still much more that we as legislators need to do to protect children online. In the 12 months to June 2016, 19 per cent of teens and eight per cent of children were cyberbullied. The cyberbullying ranged from being socially excluded, being called names, receiving unwanted online messages, having lies spread about them, receiving threats to their safety, having their accounts accessed without their consent, having personal information posted without their consent, having inappropriate private photos posted of them without their consent and even having someone impersonate them. We owe it to Australian children to protect them and provide them with strategies and tools to stay safe online so they can experience the benefits of the internet without being at risk of the pitfalls. The safety of children in the digital space should always be the paramount focus for what is soon to be renamed the Office of the eSafety Commissioner. We must protect those who cannot protect themselves.

But prioritising children does not mean that we should turn a blind eye to other areas in desperate need of such legislative reform. More needs to be done to protect women online, particularly from the non-consensual sharing of intimate images online, commonly known as revenge porn. However, 'revenge' is inherently victim-blaming. It suggests the victim did something to warrant such treatment and which ought to be avenged. They did not. Those who publicly release intimate images and videos without consent do so with the specific intention of intimidating, controlling and humiliating the victim. A survey of more than 4,200 people by researchers from RMIT and Monash University found that image-based abuse was far more common and affected a wider range of people than was previously thought. One in five Australians have been the victim of so-called revenge porn, with Indigenous and disabled people the most common targets. These marginalised groups were found to be especially vulnerable, with one in two Indigenous Australians and one in two disabled people affected. Young people and lesbian, gay and bisexual Australians also faced a higher risk of abuse. It is incumbent upon us as parliamentarians to legislate to protect these victims, and it is also incumbent upon social media companies and websites to take stronger action.

The Office of the Children's eSafety Commissioner received more than 350 complaints since October last year about the non-consensual sharing of intimate images online. Of the 350 complaints, the images appear in mix of sources: fora, file-sharers, image hosts, search engines, social media and websites. At least seven cases were referred to police, with perpetrators mostly being men and teenage boys. Children's eSafety Commissioner Julie Inman Grant has stated that:

At last count, there are over 3,000 web sites hosting so-called revenge porn around the world, 90 per cent of these images are of women. So that is why it is critical that we provide support and redress for victims.

Whilst this bill contains amendments to broaden the general functions of the eSafety Commissioner, it does not confer any additional formal powers on the commissioner, particularly to deal with image based abuse. This is an enormous missed opportunity for the government. The Senate Legal and Constitutional Affairs References Committee inquiry into the non-consensual sharing of intimate images reported on 25 February 2016, recommending a number of measures be introduced to combat the growing incidence of non-consensual sharing of intimate images.

I call on the government to legislate, to the extent of its constitutional power and in conjunction with state and territory legislators, offences recommended by the Legal and Constitutional Affairs References Committee. South Australia has, since 2013, had legislation that makes it an offence to distribute invasive images of a person without their consent. Further, the Criminal Code makes it an offence to use a carriage service to menace, harass or cause offence. But this legislation does not go far enough. There must be provisions that deal specifically with the recording, sharing of and threatening to share intimate images without consent.

Last month the government released a discussion paper calling for submissions on a proposed civil penalties regime, targeting both perpetrators and sites hosting intimate images and videos shared without consent. There will now be further consultation, and the Department of Communications and the Arts would then provide advice to the government on the outcomes of that consultation before the government will even consider any legislative changes. The cross-jurisdictional National Cybercrime Working Group, established under the Law, Crime and Community Safety Council, has produced a non-binding national statement of principles relating to the criminalisation of the non-consensual sharing of images. To emphasise: these principles are non-binding and are yet to be underpinned by a legislative framework.

The glacial pace of these changes is failing to keep up with the explosion of image based abuse. Sadly, we are now some 16 months on from the Senate committee's report and still many months away from potential legislative change on this issue. That is why I, on behalf of the Nick Xenophon Team, will be moving the second reading amendment that has been circulated in the chamber calling on the government to criminalise such activity. The government, the opposition and many of the crossbench have shown that they have an appetite for reform to make the online space safer for children. But let us not miss this opportunity to ensure that age should be no barrier when it comes to protecting victims of abuse online and showing perpetrators that online abuse will not be tolerated—not today, not tomorrow, not ever.

I move the second-reading amendment on sheet 8163:

At the end of the motion, add:

", but the Senate:

(1) notes that Australian laws have failed to keep up with the new ways that technology is being used to cause harm, particularly to women; and

(2) calls on the Government to criminalise the sharing of intimate images without consent, pursuant to the recommendations made by the Legal and Constitutional Affairs References Committee in its report on the phenomemon colloquially referred to as 'revenge porn'.

1:27 pm

Photo of David LeyonhjelmDavid Leyonhjelm (NSW, Liberal Democratic Party) Share this | | Hansard source

The Enhancing Online Safety for Children Amendment Bill 2017 amends the Enhancing Online Safety for Children Act to now make the government responsible for online safety of adults. It goes beyond the existing offences against online harassment as well as current considerations at the state and federal levels of specific offences against revenge porn. On that matter, I indicate that I will be supporting Senator Kakoschke-Moore's second-reading amendment on that issue.

But seriously, what a great idea. The world wide web is filthy and in need of a good internet filter! But surely the bill does not go far enough, because social media is not the only means for adult social interaction. We talk on the phone, too, and surely there is a role for government guidance on how to answer the phone, how to politely hang up on people who are trying to sell you stuff, and what the appropriate duration of a phone call with your mother is! People still use snail mail, too, and I cannot tell you how upset I feel when I read letters containing incorrect use of 'Yours sincerely' instead of 'Yours faithfully'. I worry about the dire consequences arising from the absence of taxpayer funded guidance on these issues. I cannot think of specific dire consequences, but I am sure they are out there! This is why we pay taxes: not so that we have a government that does what we tell it to do, but so that we have a government that can tell us what to do.

Finally, to those watching on YouTube, let me convey an important message as your elected representative: please be careful—and thank you for paying my salary so that I can tell you that!

1:29 pm

Photo of David FawcettDavid Fawcett (SA, Liberal Party) Share this | | Hansard source

Mr Acting Deputy President Marshall, it is not often that I find you speechless in this place, but clearly Senator Leyonhjelm's contribution there—with his tongue firmly in cheek—has left you speechless! For those children who are in the gallery watching, the good senator was expressing his dismay at what he sees as too much government control, as opposed to not enough, which may have been the surface interpretation of what he was saying. At a principal level, I too agree in the concept of small government.

Opposition Senators:

Opposition senators interjecting

Photo of David FawcettDavid Fawcett (SA, Liberal Party) Share this | | Hansard source

Thank you, to the members opposite. They are my cheer squad today, which is wonderful. On this bill, the government is committed to helping women who have had intimate images shared online without their consent. Clearly, those things are a crass intrusion into the privacy of anyone. We do not wish to see that kind of conduct expanded and damaging more people. Since October 2007, the Office of Children's eSafety Commissioner has received some 370 complaints concerning the non-consensual sharing of intimate images. We hear of a range of sources of that, whether it is teenagers engaging in this activity with sexting or, more troubling, adults engaging in the sharing of images, particularly of younger people, as part of grooming or other activities, which lead to harm for people. So the government introduced the Enhancing Online Safety for Children Amendment Bill into the parliament on 9 February 2017 to expand the general functions of the Children's eSafety Commissioner for online safety for children to online safety for all Australians.

It does strike me that this is a topic which Australians need to be aware of, because, as we have dealt with various parts of security legislation in the country, people have been concerned about some of the information, for example, around metadata that may be retained by telcos. It strikes me as odd that people are prepared to place online through Facebook or other platforms far more information than they would ever dream of providing or would like to have available to government or to telcos through things like the metadata bill, which is actually quite a limited set of information. Almost without thinking, many people share not only images but other private information to an extraordinary level of detail with some social media platforms. In contrast, metadata is quite a limited set of information and has been a key part of investigations that have helped to break up child pornography rings, organised crime and terrorism. Almost every successful prosecution in recent years in Australia and overseas has included things like metadata. So I just contrast the concern people have for a limited dataset with what they put on online. It is important, as we look at online safety, that people consider the extent of information which they share through social media.

The eSafety Commissioner, Ms Inman Grant, commenced on 16 January this year and is working to put in place a number of practical measures to combat the non-consensual sharing of intimate images. This is commonly referred to as revenge porn or image based abuse, and it will be subject to the passage of this legislation. It will include an online complaints portal for revenge porn, which will be launched later this year. This bill is before the parliament now. I ask members here to keep in mind the fact that there have been numerous calls from women support services to take immediate action in relation to the non-consensual sharing of images because of the harm that is done to them emotionally and professionally in some cases. In terms of the information, once it is online it remains there essentially forever and a day, which can damage an individual. To this end, the Enhancing Online Safety (Intimate Images and Other Measures) Legislative Rules 2017 will confer an additional function on the children's eSafety Commissioner to undertake work that will improve the online safety for all Australians at risk of having intimate images of themselves shared without their consent.

The legislative rules will allow the commissioner to access the election commitment funding, which was some $4.8 million over three years, to develop and implement a national complaints portal for victims of non-consensual sharing of intimate images. Likewise, the legislative rules will also permit the commissioner to develop a seniors digital learning portal and outreach program, and this will focus on increasing the digital literacy and online safety skills of older Australians. That is important not only in the area of intimate images. We now see many senior Australians actively taking up digital platforms for a range of things—from staying in contact with people on social media through to banking, bill paying and other activities. Through my own extended network—both family and others—I know the number of times these people are targeted by criminals who would seek to compromise the security of older citizens in our society by essentially rorting from them information about their accounts, their computers and their iPads so that they can defraud them of identity or money. So it is an important aspect of our work with the community to make sure older Australians also are increasingly aware of not only the advantages of the digital environment but also some of the pitfalls and to make sure they have the skills and knowledge required to remain safe in this environment. The legislative rules are an interim measure in advance of this bill's passage through the parliament, and that is in response to those calls for more immediate action to address the risk.

A new study by RMIT released in May shows that nearly one in five Australians will have fallen victim to this kind of abuse. This rate increases to one in three Australians when we look at the 16- to 19-year-old age group and it increases yet again to one in two Australians when we look at disabled people and Indigenous populations within Australia. So the study shows that this kind of abuse goes well beyond what may be classically considered to be revenge porn when a relationship has gone sour. Intimate images are being used to control, abuse or humiliate people in a range of different ways. Disturbingly, the study also shows that the perpetrators of the abuse are, more often than not, friends, acquaintances or family members rather than jilted ex-partners.

As I touched on at the start, this is not a victimless crime. The most intimate images, or footage, of victims that were never intended to be shared are posted and proliferated without consent and, frequently, with malicious intent. This form of abuse—and it is abuse—has a psychological toll on its victims, with some 75 per cent of victims suffering from moderate to severe anxiety or depression. There are so many examples where we can see the debilitating effect of anxiety and depression, particularly on young people or those who already feel marginalised in our society. If this has such a high correlation of occurrence, then it is clearly an area that we wish to reduce the incidence of. Also perhaps, in terms of people understanding how they interact with digital platforms in the era of mobile phones and the ease of making digital images—whether they be stills or video—this encourages people to exercise more caution and discretion as to when, or indeed if, they make such images in the first place knowing that in the digital environment the potential for these to be shared and then essentially never erased is increasing all the time.

The study also called for greater support for victims. If you look at the United Kingdom, it has a revenge porn helpline so that people can seek support when they have suffered this kind of abuse, and the Australian government is looking to put in place a number of initiatives to address the issue of the lack of support that people caught in this environment need.

During the 2016 election campaign the government announced that it would provide an additional $10 million to support victims of domestic violence, including those who have had their intimate images shared without consent, and this also goes to improving research and education to counter the risk of technology-facilitated abuse—although I would come back to the very simple premise that if you do not wish such images to be shared then do not participate in making them in the first place. I am a great believer in personal responsibility in such things, so if you think that this is something that would be shattering to your life then I would encourage you not to allow these images to be made in the first place.

This research and education measure is being funded through the $100 million Third Action Plan to reduce violence against women and their children, noting that that plan covers a far wider range of violence against women and children than just the online part. Funding is being provided to the Office of the eSafety Commissioner to develop a complaints portal, which will be launched later this year, to allow victims to report cases of non-consensual sharing of intimate images and to access immediate and tangible support.

On 23 November the government announced that it would conduct a public consultation process on a proposed civil penalty regime, targeted at both perpetrators and sites that host intimate images and videos without consent, which would provide the eCommissioner with more powers to facilitate the rapid removal of such images. This is the topic of a discussion paper that was released by the Department of Communications and the Arts in May this year, with the consultation period running for six weeks until the end of this month. The eCommissioner welcomes feedback and is looking for a whole range of groups and stakeholders in this space to give feedback throughout this process. Face-to-face workshops will also be held to engage all relevant organisations and individuals.

The government is looking to take action now through legislative rules and through this legislation to build a more permanent framework. I reiterate that we are looking to engage with a range of stakeholders, and the opportunity to contribute to the discussion paper is open until the end of June. Whilst the government will play its part, including through research, education and potential penalties, I conclude my remarks on this bill by highlighting the element of personal responsibility, which is: if you do not wish intimate images to be shared then be mindful of the fact that in this day and age anything that is recorded with a smart phone or other device has the potential to go anywhere—so exercise judgement and discernment.

1:43 pm

Photo of Mitch FifieldMitch Fifield (Victoria, Liberal Party, Manager of Government Business in the Senate) Share this | | Hansard source

I thank all of my colleagues who have contributed to the debate on the Enhancing Online Safety for Children Amendment Bill 2017. I must say that I am very pleased to see that this bill has received support from around the chamber.

The Enhancing Online Safety for Children Amendment Bill does contain important amendments to implement the government's 23 November 2016 announcement to broaden the Children's eSafety Commissioner's general functions to cover online safety for all Australians, not just Australian children. Importantly, the bill will change the name of the Children's eSafety Commissioner, reflecting the expanded general functions of the Children's eSafety Commissioner, to eSafety Commissioner, which will make it easier for the public to identify where they can seek assistance and advice in relation to a range of online safety issues irrespective of age. It should be noted that the statutory scheme for complaints about cyberbullying material on social media sites will continue to relate only to material that is harmful to an Australian child, and the commissioner's responsibilities for administering the online content scheme under the Broadcasting Services Act will remain unchanged by the bill.

The amendments do not create any offences or civil penalties, provide any new regulatory powers, impose any new taxes or set any amounts to be appropriated from the consolidated revenue fund, because appropriate arrangements for these matters are already in place or, in the case of civil penalties for the sharing of intimate images without consent, will be sought under future legislation.

Funding of $4.8 million for work on the online complaints portal for reporting non-consensual sharing of intimate images and $16.9 million to improve online safety for older Australians were announced through the MYEFO in 2016-17.

The costs relating to the change of name, including signage and other matters, will be minimal and can be accommodated through the existing budget. While the government recognises that online dangers such as cyberbullying apply to both adults and children, there are existing avenues, including criminal laws, which apply to using the internet to menace or harass people of all ages. The government does not consider that there is a need to create any new powers to investigate cyberbullying complaints between adults at this time.

I should mention that there has been some confusion from some colleagues about the function of the bill's amendments. They have in part contended that all the bill does is change the title of the office. This is not the case. At present, the title of the commissioner provides a legal barrier in terms of the work it does. By changing the title, the commissioner is able to better carry out the work of protecting online safety for all Australians.

The role of the commissioner has been expanding, particularly in relation to work supporting women and also issues of domestic violence. I should make brief reference to Senator Kakoschke-Moore's second reading amendment. I should note that already there is section 474.17 of the Commonwealth Criminal Code, which makes it an offence to use a carriage service to menace, harass or cause offence. This has been used successfully on a number of occasions.

I should also note that, while there are at federal level appropriate criminal laws in place, notwithstanding these existing criminal provisions at Commonwealth level, in most cases victims go to state-based police for help. That is why in parallel the government has worked with the states and territories through COAG to develop a national statement of principles for the criminalisation of non-consensual sharing of intimate images. On 19 May this year, the Law, Crime and Community Safety Council agreed a national statement of principles relating to the criminalisation of non-consensual sharing of intimate images.

So there is important work to be done and more to do. I commend the bill to my colleagues.

Photo of Stephen ParryStephen Parry (President) Share this | | Hansard source

The question is that the second reading amendment moved by Senator Kakoschke-Moore be agreed to.

The question now is that the bill be now read a second time.

Original question agreed to.

Bill read a second time.