SPEECH - ENHANCING ONLINE SAFETY FOR CHILDREN BILL 2014 - 12 FEBRUARY 2015

I am pleased to have this opportunity to make some comments on the Enhancing Online Safety for children Bill 2014 and its related consequential amendments bill. 

I note that this bill has been referred to a parliamentary committee for consideration. The closing date for submissions on that was 12 January and the reporting date is 3 March 2015. This, I believe, was an appropriate course of action to take considering that this is the first time that such codified or hard regulation in this area exclusively focused on the subject matter at hand has come before the parliament. Of course, we have some telecommunications specific aspects of the Criminal Code Act. There are of course provisions in the Telecommunications Act and the related legislation but this bill as a whole is the first type of this legislation to come before the parliament.

The opposition will be supporting these bills subject, of course, to any recommendations which may arise from the Senate committee.

It is evident that the path to reach this point of legislative consideration has been complex. I think all of us in this place and our community at large recognise the importance of this issue and a variety of views have been expressed on the subject matter of this proposed legislation in media commentary, in academic papers and also in the submission process itself before the committee that I just mentioned.

The issue of getting the legislation is right as possible is, I believe, absolutely essential. If we look at the path so far that we have taken to this point, it is instructive to note that this is a complex area of regulation. To give a flavour, on 22 January 2014—over a year ago—the Department of Communications released a public discussion paper seeking comment on several of the measures that the government proposed to take to help protect Australian children in the online environment. Submissions in response to that discussion paper closed on 7 March 2014 and the government considered the feedback it had received. By 6 August 2014, just as an example of comments, the parliamentary secretary said that the government aimed to be in a position to introduce legislation into the parliament before the end of 2014, and, indeed, that legislation is what we are considering now. It was introduced in the last few sitting days of 2014 and here we are today.

It is important to note that these are matters on which this parliament, if not in a hard piece of legislation then certainly in other fora, has been extremely concerned about. Just as an example, in June 2013 this House considered the issue of cybersafety, particularly as it relates to children. And I will quote these comments I made, because looking back on them they are as relevant now for this legislation as they were during the consideration in June 2013. I said:

When we talk about emerging technologies, a debate will always happen on how best to regulate where regulation should occur. While we have that debate, I think two things should remain paramount. Firstly, the safety of children is paramount—we call it cybersafety and we need to focus on the issue of safety—and, secondly, harm minimisation generally as it applies to users of technology.

I made some comments in relation to the development of technology and the regulatory challenges that presents for policymakers. As I noted:

… content does not just disappear. It probably does not amaze a lot of people here, who have been engaged in this debate, but you would be amazed to know, in society, how many young people in particular think that, because they have deleted a post, text or picture from their device, that content is gone forever. But of course it is not.

I cited what, at the time, was a contemporary issue of extreme concern for a small town in Victoria. It again presents an immense challenge in terms of behaviour as it applies to technology. I noted, from a transcript of a recent 7.30 report at the time:

One in five young women have posted images of themselves nude or semi-nude online. Nearly half the girls have been asked to.

In this story there was a focus on a small Victorian country town where Facebook forums, it said:

… have trashed the reputations of local girls.

In small towns, where news spreads fast, and even faster in digital format, the lives of these young people have been, in some cases, I think, irreparably damaged, when you look at some of the evidence.

These are some of the very complex and challenging issues that we, as a parliament, have an obligation to address.

When we look at some of the initiatives that have already been taken in relation to cyberbullying, you can see that it is a vast array of often disparate initiatives, but at all times you can see that this has been a great focus of governments in Australia at both a federal level and a state level. Just to highlight a few: the Australian Federal Police child protection operations team, which investigates online child sex exploitation; the regulator, the ACMA, has the Cybersmart program, comprising an extensive range of cybersafety education initiatives; there is a cybersafety help button; the Easy Guide to Socialising Online; the ThinkUKnow websites, sponsored in part by the AFP; the Online Safety Consultative Working Group; the Youth Advisory Group on Cybersafety; the Teachers and Parents Advisory Group on Cybersafety; and ongoing cybersafety research into the challenging digital environment. Taking all of those together, and also reflecting on the fact that even a few days ago, on 10 February, we had Safer Internet Day—a day that is marked not only in Australia but also around the world—if you have a cursory examination of these provisions that already exist in relation to cyberbullying, it is appropriate to examine what this bill before us proposes to do.

The primary bill establishes a children's e-Safety Commissioner. It sets out its functions and powers, which relate to a defined prohibition against cyberbullying material targeted at an Australian child. Under this proposed legislation, a child or their representative can complain to the commissioner that they are or have been the subject of cyberbullying material and the commissioner may investigate such complaints. The bill sets out an expectation of the parliament that each social media service will comply with a set of basic online safety requirements, and these include minimum standards in a service provider's terms and conditions of use, a complaint scheme and a dedicated contact person.

Under this scheme, two tiers of social media services are created. Tier 1 comprises social media services that have applied to the commissioner to be declared as such. If I can summarise one of the key differences between the two tiers, as a practical matter one of the advantages that I see of the tier 1 declaration does appear to be reputational—largely reputational, but not exclusively. Social media services within tier 1 may be requested by the commissioner to remove material that has been the subject of a complaint as cyberbullying material targeted at an Australian child. In contrast, a tier 2 social media service may be issued a social media service notice by the commissioner, which requires the removal of such material. The commissioner also has the power to issue notices to end users who post cyberbullying material, which can include a requirement for them to remove that material. The primary remedy for non-compliance with such a notice is injunctive relief.

If a social media service fails to comply with the basic online safety requirements, a request to remove subject material or a social media service notice, then the commissioner may make a statement to that effect and publish it on its website. Civil penalty provisions arise in relation to non-compliance with such a social media service notice. The commissioner has other functions, including the promotion of children's online safety and to coordinate the activities of other departments relating to the same. The second bill contains related consequential and transitional provisions in other legislation.

I now turn to the issue of cyber bullying of young people in more detail. 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.

The evolution of technology has forever changed the way we are all connected. It has opened up new worlds of communication, friendships, learning and opportunities that have infinitely transformed and enhanced our lives. Of course we also have with that an unmatched opportunity to feed our desire to be more innovative, creative and decisive in shaping Australia's future, and certainly our nation's youth have seized on the same. Unfortunately, however, as technology has evolved so too have some of the darker aspects of our society been given new fora to insult and harm. Whilst bullying has always been a blight on our young people in particular, today of course bullying does not stop at the school gate. It can hound our children from the classroom to their homes via computer screens and an infinite number of mobile devices. Gone are the days when bullying could be easily identified through tangible acts such as teasing and physical violence. While this form of what we might call overt bullying is an issue that must be removed, it is the more covert and insidious act of cyberbullying that has become more rampant and widespread and which is the subject of this legislation.

Today, through the advent of social media, many of our children are enduring relentless harassment and anguish in the supposed sanctuary of their own homes. According to research led by the UNSW Social Policy Research Centre, which I note the government has quoted, one in five of our nation's children aged between 10 and 17 have experienced some sort of cyberbullying. It is worth noting that many instances will of course go unreported. The often clandestine nature of cyberbullying has meant perpetrators do thrive incessantly on tormenting their victims without fear of reprisal. The consequences of this can indeed be devastating. Evidence suggests that students who were cyberbullied report lower levels of connectedness and higher levels of loneliness at school as well as feeling less safe at school. They are also more likely to experience difficulties such as inattention and conduct problems as well as severe psychological, social and mental health problems compared to students who are not subjected to such abuse. The opposition, therefore, strongly believes we have a responsibility to do all we can to prevent damaging outcomes.

It is in part taking into account some of those issues that the Joint Select Committee on Cyber-Safety interim report and the government's statement of response more specifically in December 2011 focused on the issues of the online environment in which children currently engage, ways in which to support schools in dealing with cyberbullying instances and analysing information on world's best practice safeguards. There are a number of recommendations made in that report, which the government took into consideration and have, I am sure, helped inform the direction of this proposed legislation.

I mentioned that young people are being more connected and are content generators of a type we have never seen before in our history. It is also important to note that listening to young people when it comes to how cyberbullying should be addressed is fundamental. I draw on an article by Slee, Spears, Campbell and Cross in the Centre for Strategic Education occasional paper in December 2011. It is an excellent summary of cyberbullying as a new manifestation of an old problem. It states:

Defined as repeated, harmful interactions that are deliberately offensive, humiliating, threatening and power assertive, cyberbullying interactions are enacted using electronic equipment, such as … (mobile) phones or the Internet, by one or more individuals towards another. Cyberbullying can take the form of instant or email messages, images, videos, calls, excluding or preventing someone to be part of a group or an online community.

…   …   …

In contrast to face-to-face bullying, the limits of cyberbullying are difficult to define. For instance, a single image can be forwarded countless times to innumerable people, a message can be pervasive and difficult to stop, an aggressor can remain unidentified hiding through multiple profiles, maintaining anonymity and making it harder for the victim to defend, escape or identify (and as a result, act to stop the behaviours). Furthermore, cyberbullying behaviours can change and assume new forms according to different interactional settings, highlighting both the overt and covert forms of these behaviours …

I mention that because these are the challenges that no doubt are faced by this legislation. Indeed, there is the challenge of bullying itself. As I noted in those quotes, bullying in whatever form is repeated, harmful, deliberate and offensive. I turn to a more recent piece reported in The West Australian on 26 August 2014. Under the headline 'Old-school bullying still rife' it states that twice as many teenagers are subjected to traditional schoolyard type bullying compared with cyberbullying, according to recent research at Murdoch University. The author of this research said:

… the focus of anti-bullying methods should be not so much on the method used by teenagers but the underlying causes of the behaviour.

I think this is also a very important point. The article continues:

Schools and communities have limited resources and we need to be smart about finding ways to have maximum effect on harmful behaviours, wherever they occur.

On that point I simply note The Australian Financial Review on 25 August last year had an acknowledgement by many studies that parents need to be vigilant and active in the world of social media in order to understand its dangers. One of the psychologists states:

… the world of social networking and its relentless, 24-hour presence in our lives, and our children's lives, has created the conditions under which feelings of anxiety and fear in children can take root and flourish.

…   …   …

… children who might ordinarily have never become bullies sometimes display bullying tendencies with access to social media.

These children take to online to assert themselves in a environment where they don't have to use the range of emotions they use in face-to-face communication, so they might resort to some derogatory behaviour in an online setting.

As I mentioned, considering all these factors surrounding the definitions of bullying in both online and more traditional settings, and taking into account some of the research into how it should be addressed, it is important that this legislation is given proper consideration—and I think the process of going through the current Senate review is one that is very appropriate. All industry bodies and all submissions that have been made, not just from industry, should be thanked for taking part in this process.

Similarly, along with my colleague the shadow minister, 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 note, for example, the concerns expressed by the Australian Interactive Media Industry Association Digital Policy Group, which represents some of the more well-known faces of social media including Facebook, Google, Twitter, Microsoft and Yahoo7.

It is also important to acknowledge many of the proactive steps being taken by communications and social media organisations when it comes to protecting people and taking action against online bullying. As one of the fundamental principles, social media companies of course have a commercial interest in innovating and, in doing so, doing all they can to ensure people can use their respective services free from harm and not be afraid to engage and take up more such services and thus allow innovation to thrive. As the AIMIA states in its submission, its member bodies:

… have policies that expressly prohibit bullying; we invest in a reporting infrastructure that allows the millions of people who use our services to report any bullying content … to promptly review and action those reports; and we undertake online safety outreach and awareness-raising.

It is also appropriate to note a recent announcement made by Twitter, a company that had admitted it 'sucks'—in the words of the CEO—at addressing the online abuse that occurs on its service and the need to enhance their in product harassment reporting and make improvements to its block feature.

I also want to acknowledge the outstanding work from anti-bullying organisations in Australia who work to protect our young people online. I want to specifically mention the efforts of the Alannah and Madeline Foundation on the recent launch of the eSmart Digital Licence; an online tool designed to education and protect children against cyber bullying. It must also be mentioned that Google contributed $1.2 million to the program to ensure the digital licence is available to all year 6 students across Australia—a similar concept to when a child obtains a pen licence to give up their pencil and use a pen. As noted by the AIMIA Digital Policy Group in its submission to the Senate committee, 'Online safety is best achieved when government, industry, and the community work together.'

Also notable—and I think we would all have local examples—are the efforts that are taken in our communities to address online bullying. I can draw very easily on two recent examples by the Quakers Hill Local Area Command, which conducts cyber-bullying workshops for parents on a regular basis for schools in my local area. It is greatly appreciated that these police take the time to engage with the community and to try and effectively reach out to parents. I was speaking to one of the police who undertakes this sort of work and he said, 'Yes, it is really effective, it is really important and we are really committed to doing this. This is an important part of police work. Prevention is a very important part of police work.' But, unfortunately, sometimes it is the parents who need to be there who are not the ones who turn up. A lot of people have commented to me that the parents and caregivers who end up being at these sessions are often very well informed, which is great to see. But we need to be vigilant in thinking about how we reach out to those parents who either are not aware or who are otherwise oblivious to the behaviour of their children in some cases, and who are causing such harm.

I noted in my previous comments the issue about implementation. I draw from the second reading speech made by the parliamentary secretary to illustrate a couple of areas where it will only probably be in the implementation, and examining how the commissioner works as it starts its business before we really know how these provisions are going to work in practice. To give one example on the issue of the two-tiered rapid removal scheme, I quote here from the parliamentary secretary's comments in this place:

Following investigation of a complaint, the commissioner may request that the tier 1 social media service remove the cyber-bullying material, but there is no legal obligation on the social media service to comply.

In one sense, one might say, 'How can that be effective?' But I appreciate that the reality is we have had in Australia—and it has operated very effectively—a co-regulatory scheme. In this case we have codified, to some degree, what had been in place under the Gillard government, which was a cooperative arrangement for complaints handling on social networking sites. This established a set of principles for things like acceptable use; a complaints mechanism; having an identified contact person; and education and awareness raising which, as I note in my previous comments, is quite similar to the parliament's statement of expectations that are specifically contained in the legislation.

If there is criticism that this provision is somewhat weak, I believe that it is important to recognise the co-regulatory nature of our scheme and, more importantly, as I engaged with the parliamentary secretary on this issue, that this rapid removal scheme needs to ensure that, regardless of the technology that develops, that technology is capable of removal and is capable of identifying the person who posted it in the first place. To this end I think one of the more instructive examples is in an article that was published in The Sydney Morning Herald on 1 December 2013, where police issued a warning on a social media messaging app—not one of the traditional online social media sites—called Kik. The article states:

NSW Police have described it as ''the number one social media problem involving teenagers''—but most parents would barely have heard of messaging app Kik before this week.

Kik's popularity among young people was highlighted by the disappearance of Sydney teenager Krystal Muhieddine, who left her house early on Tuesday morning in a car with a stranger before being found in country Victoria on Friday.

Krystal's parents did not allow their children to use social media in the house, but Mrs Muhieddine said she believed her 14-year-old daughter had been using Kik to communicate with the person with whom she left.

That is one challenge. The other challenge I raised with the parliamentary secretary is the issue of end-user notices. Quoting the parliamentary secretary:

The bill will not include a power for the commissioner to fine end-users who fail to respond to a notice … because the government is wary of imposing fines on children in this area.

Many of those who fail to respond to a notice could, in fact, be children. And:

The government anticipates that the commissioner will enter into arrangements with the police and educational bodies setting out the circumstances in which matters would be dealt with by those parties.

The parliamentary secretary told me that, as the commissioner undertakes their role, he anticipates that guidance notes might be issued. Even as a starting point, how does one serve a notice on a child, for example? Would it be done through electronic means? Would it be done by letter—as notices are often served? And how does one identify who that end user is? As I noted in my previous comments, often these are matters and actions that are undertaken under the shadow of anonymity or with fake identification.

Whilst I recognise that these are some of the challenges in implementation, the opposition believe that they should indeed be given a go in order for them to have a chance to prove themselves effective in addressing these issues.

In conclusion, the opposition will be supporting this legislation. We will see what arises from the Senate committee report and whether any substantive measures might need to be taken up. I do note that there is a statutory review mechanism in the legislation which is highly appropriate for legislation of this nature and which is the first of its kind specifically and solely on this subject matter. It will be important for whatever government, committee or body undertakes or oversees this review to do so, being mindful of the very important intent of this legislation. We do have a duty to do all we can to prevent and stop the bullying of young people, and we hope that this legislation achieves those aims.

I thank the parliamentary secretary for providing a briefing to the opposition on this matter, and I thank his adviser, Amy Dobbin, for facilitating these briefings. It has been greatly appreciated and has enabled us to form our views on this very important legislation.