SPEECH - ENHANCING ONLINE SAFETY FOR CHILDREN AMENDMENT - 18 JUNE 2017

I rise to speak on the Enhancing Online Safety for Children Amendment Bill 2017. 

I firstly note that Labor supported the establishment of this office and put on the record its support for the commissioner and the important work of her office. However, the bill before us today exemplifies the 'regulate first, think later' mentality of this government as well as its short-sighted and piecemeal approach to online safety for Australians. This bill amends the Enhancing Online Safety for Children Act 2015 to broaden the functions and the title of the statutory office of the Children's eSafety Commissioner.

Labor broadly support the bill, although there is not much to the bill, of course, and that is the point. The bill exemplifies the tendency of the government, as I said, to do things without really thinking them through, only to change their minds later or tinker with cosmetic issues, like name changes, in order to be seen to be doing something while actually falling well short of addressing issues properly. Like so many other policy areas, the government are making up their approach to online safety for Australians as they goes along. It is one thing to be flexible and adaptable—qualities that can be useful in this day and age—however, it is another thing entirely to be short-sighted and piecemeal, and unfortunately it is the latter set of traits we see exhibited by the government.

The Office of the Children's eSafety Commissioner commenced operations only two years ago, on 1 July 2015, and already the Turnbull government have a bill in parliament to change the name of the office they created. It is worth noting a few issues about this. Firstly, the remit of the office has always been, since its inception, broader than children, so it was somewhat short-sighted of the government to focus the name of the office on children in the first place. In addition to administering a complaints system for cyberbullying material targeted at an Australian child, the office has, since day 1 of its operations, administered the Online Content Scheme under schedules 5 and 7 of the Broadcasting Services Act 1992, which applies to illegal and offensive content, including content that advocates terrorist acts or which instructs in matters of crime or violence, for example. The government either misunderstood or ignored the experience of the Australian Communications and Media Authority, out of which the Children's eSafety Commission was created, as the ACMA had a clear and distinguished track record in promoting online safety for all Australian citizens, not only children. Now, and because of the Liberal-National coalition government's lack of foresight, awareness and understanding about the remit and function of the office they created, taxpayer funds will foot the bill for any rebranding required as the office is renamed. They are making it up as they go along.

Secondly, the government started tinkering with the office early, conferring additional functions upon the commissioner by legislative rule only months after it commenced operations in July 2015. The Enhancing Online Safety (Family and Domestic Violence) Legislative Rules 2015, made under subsection 108(1) of the act, was signed by the communications minister and registered in December 2015. The purpose of this was to confer additional functions upon the commissioner in relation to the online safety of persons at risk of domestic or familial violence of any kind. Specific functions included 'to support, encourage and conduct educational, promotional, training and community awareness programs', for example. Of course, only last month the government again conferred additional functions by legislative rules. The Enhancing Online Safety (Intimate Images and Other Measures) Legislative Rules 2017 were registered on 30 May and specify additional functions for the Children's eSafety Commissioner as described in this bill.

Thirdly, while the government has dressed this bill up as 'expanding the role of the eSafety Commissioner to address online safety issues affecting adults, including to combat non-consensual sharing of intimate images, commonly referred to as revenge porn', this bill does not actually extend the existing cyberbullying scheme to adults or confer any new powers to the commissioner to deal with revenge porn. It really just empowers the office to provide information based initiatives for adults. As the Bills Digest notes, at page 2:

While the Commissioner will not have the ability to receive complaints from adults about cyber-bullying material, the Government seeks to improve and promote online safety for all Australians through education initiatives.

Also, at page 5:

The Government does not intend for the complaints scheme for cyber-bullying material that targets Australian children to be expanded to cover all Australians.

And, at page 3:

This Bill does not introduce offences for non-consensual sharing of images but is a recognition of the Government’s commitment to assist all Australians on online safety, through education and research.

To quote an answer from the Office of the Children's eSafety Commissioner to a question on notice in the recent Senate estimates hearings, the Enhancing Online Safety for Children Amendment Bill 2017 contains amendments to broaden the general functions of the Children's eSafety Commissioner to cover online safety for all Australians, not just Australian children. The bill will also change the name of the Children's eSafety Commissioner to the eSafety Commissioner to reflect the expanded general functions. It does not confer any additional formal powers on the commissioner.

Meanwhile, serious questions about civil and criminal offences for dealing with non-consensual sharing of intimate images remain unaddressed by this bill. As I said, this government is just making it up as it goes along. It is evident that this government is confused about online safety and that it has created confusion in the community about where to go for information and assistance about e-safety. They have admitted themselves—and to quote the second reading speech by the member for Bradfield—

The bill amendments address feedback received by the government that adult members of the public are not aware that they can go to the Children's eSafety Commissioner for assistance with concerns around illegal or offensive online content, the sharing of intimate images without consent—commonly referred to as 'revenge porn'—or for general advice about how to manage technology risks and online safety.

And in response to a question on notice during Senate estimates recently, the office stated that it 'has noted anecdotal feedback that the current name may deter some segments of the public coming to the office for assistance on a broad range of online safety issues currently within the office's remit'.

Let's be clear: it was an idea of this government to transfer responsibility for online safety away from the ACMA to the newly created Office of the Children's eSafety Commissioner, which has caused confusion about where adult Australians can turn for assistance on e-safety. At the same time that the government took the decision to create the office, the ACMA had been responsible for a range of initiatives in the online safety space for years. Under the Cyber Smart brand, the ACMA offered a suite of tailored cybersafety initiatives, digital media literacy initiatives and education programs to meet the needs of all Australian citizens, not confined to children. The Cyber Smart resources and programs were highly regarded. For example, within the education sector, the professional development for educators program was aggregated or endorsed in every state and territory, and the ACMA produced film Tagged, dealing with issues of cyberbullying, sexting and digital reputation, achieved a swag of international film and television awards.

Despite this success and despite there being no confusion over the remit of the ACMA with respect to adults or children, the view of government was that the ACMA was not high-profile enough. This was confirmed by the Minister for Communications under scrutiny, again, at Senate estimates. Earlier this year Senator Urquhart put it to the communications minister that there had not been any confusion about the ACMA's remit with respect to adults or children, and the minister agreed:

You are right. Some of the responsibilities that the commissioner has now were previously held by ACMA. No disrespect to ACMA, but I do not think the acronym 'ACMA' is necessarily top of mind for the community … it was not a high-profile office in the way that we wanted the Children's eSafety Commissioner to be and that we now want the eSafety Commissioner to be.

Leaving aside the issue that 'ACMA' may be an initialism rather than an acronym, it is notable that the government already had a regulator with a broad name that did not confuse people. In creating a new office, the government went against the trend of deregulation and of rationalising statutory agencies, giving it the name 'Children's eSafety Commissioner', only to change the name a couple of years later when they realised the remit of e-safety in Australia was indeed broader than for children.

One is reminded of Prime Minister Turnbull's Digital Transformation Office. While the Prime Minister wanted to create the impression that he was tackling service delivery in the Public Service with an innovative approach, the DTO failed to make headway in substance. Then, late last year, the Turnbull government announced a radical idea: to rename the recently created Digital Transformation Office the 'Digital Transformation Agency'. As my colleague the member for Chifley said in a media statement about these issues earlier this year:

If you can't name your own offices what hope have you got with the substantially more complex task of government digital transformation? The answer: not much.

That brings me back to the issue of the Children's eSafety Commissioner. I want to talk about the efficacy of the scheme, and it goes without saying that online safety for all Australians, children as well as adults, is important. Labor supported the government, as I said, in the establishment of the new office of the Children's eSafety Commissioner in 2015, based on the importance Labor places on children's safety online and in recognition of the prevalence of bullying in social media in the lives of too many Australian children. As I said at the time:

Labor are committed to do all that we can to combat online child bullying. Bullying itself is a scourge on our society. It can have devastating impacts on victims and their families, and I am sure many of us, representing our local communities as we do, have been touched in some way by that fact.

At the time, Labor also noted that the statutory review mechanism in the legislation was necessary and appropriate, given the concerns around its practical implementation expressed by a range of industry stakeholders. Again, as I said at the time:

… the opposition has also consulted widely with industry and with a variety of interested groups and individuals on this legislation, and we do acknowledge the concerns that some have expressed with it. There are concerns around the practical implementation of some of the elements of this scheme, and of course parliament should always be cautious when it comes to imposing new regulation in what is an extremely dynamic and evolving technology landscape.

I noted the concerns expressed by the Australian Interactive Media Industry Association Digital Policy Group, which represents some of the better known faces of social medium including Facebook, Google, Twitter, Microsoft and Yahoo7. These member bodies already had policies that expressly prohibit bullying and invest in a reporting infrastructure that allows the millions of people who use their services to report bullying content. They also undertake online safety outreach and awareness-raising.

Two years into the operation of the cyberbullying complaints scheme, complaints to the government office are relatively low. In the course of Senate estimates recently, the office confirmed that they had received 186 complaints in the 2015-16 reporting year, and 334 complaints to date in the 2016-17 reporting year. Of these complaints, about a quarter relate to cyberbullying material located on platforms that are actually not participants in the tier scheme or were invalid. Complaint statistics aside, the office should be congratulated on its efforts and interventions to date in assisting young Australians. All of the complaints received by the office about cyberbullying material located on a tiered social media service have been able to be resolved informally, without the need for the office to exercise its formal powers under the act.

I thank the new commissioner, Julie Inman-Grant, for her information sessions, even those conducted recently; her accessibility; and her passion for the role. Labor looks forward to working with her in future. However, this government's tinkering with the act and legislative rules suggests Labor's and industry's reservations about the scheme were indeed not misplaced. We will continue to monitor the operation of the act closely in the lead-up to the statutory review that is provided for.

I wish to turn to the issue of revenge porn. Labor welcomes the expansion of the eSafety Commissioner's role to adults as well as children. It is sensible that the eSafety Commissioner's website contains resources on what is known as revenge porn and that the new complaints mechanism be handled by the commissioner's office. Accordingly, the change in title for the position is not controversial.

However, we contend that rebadging this office and creating a complaints mechanism is not enough. Labor is concerned that the bill does nothing to criminalise the non-consensual sharing of private sexual material. Labor first introduced a bill to criminalise this behaviour in October 2015 and then reintroduced this bill in the current parliament in October 2016. Meanwhile, the Turnbull government talks about the problem of violence against women but fails to take action in this critical area. This bill is just another example of all talk and no action on this very important issue of revenge porn. The government has made no commitment to introduce or support Commonwealth legislation to criminalise this egregious behaviour.

Some states have begun to criminalise this conduct at the state level. Victoria and South Australia have made distributing internet and sexually explicit images without consent a criminal offence. Last year Western Australia passed laws allowing family violence restraining orders to be used in the case of non-consensual sharing of intimate images, and New South Wales is reported to be moving on the issue as well. It is clear that this is a piecemeal approach to responding to revenge porn. Each of the provisions is different. What is lacking is a national approach.

We know this 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 national consistency and there may still exist inconsistencies from state to state.

Labor went to the 2016 federal election promising Commonwealth legislation to criminalise revenge porn within the first 100 days of being elected. I note that 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 the new complaints process about revenge porn is welcome, it is not in and of itself sufficient. There need to be strong criminal laws making clear that are circulating nude pictures or videos of sex acts without someone's consent, or threatening to do so, is not acceptable.

Labor will continue to seek to ensure that revenge porn is criminalised, including by the creation of appropriate Commonwealth offences. Accordingly, I move the second reading amendment in my name in the terms that have been circulated:

That all words after “That” be omitted with a view to substituting the following words:

“while not declining to give the bill a second reading, the House:

(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 in the context of family violence;

(2) notes that law enforcement and experts agree that there are limitations on existing Commonwealth laws to adequately deal with sharing of intimate images without consent, colloquially referred to as ‘revenge porn’;

(3) notes that the Council of Australian Governments recommended that the Commonwealth government introduce legislation that reinforces perpetrator accountability by removing uncertainty and explicitly making it illegal to use technology to distribute intimate material without consent;

(4) notes that the Turnbull government has failed to criminalise sharing of intimate images without consent; and

(5) calls on the Turnbull government to criminalise sharing of intimate images without consent.”