Bills Digest No. 95,
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Law and Bills Digest Section
Purpose of the Bill
Structure of the Bill
National plan to combat cybercrime
Existing legal responses to
Senate Standing Committee for the
Scrutiny of Bills
Statement of Compatibility with Human
Parliamentary Joint Committee on
Key issues and provisions
Date introduced: 9
House: House of
day after Royal Assent
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
All hyperlinks in this Bills Digest are correct as
at May 2017.
Purpose of the Bill
The purpose of the Enhancing Online Safety for Children
Amendment Bill 2017 (the Bill) is to amend the Enhancing Online
Safety for Children Act 2015 (the Act) to broaden the functions of the
Children’s eSafety Commissioner to include online safety for all Australians.
As part of the amendments, the name of the Act will be amended, to be known as
the Enhancing Online Safety Act 2015.
of the Bill
The Bill has one Schedule, presented in three parts.
Part 1 will make the main amendments to the Act and
Part 2 will make consequential amendments to the Australian
Communications and Media Authority Act 2005 (Cth), Broadcasting
Services Act 1992 (Cth), Criminal Code Act
1995 (Cth) (Criminal Code), Freedom of
Information Act 1982 (Cth) and the Telecommunications
Act 1997 (Cth). Part 3 contains saving and transitional provisions.
Cyberbullying amongst young people has been widely
reported and was the catalyst to the establishment of the Children’s e-Safety
Commissioner in 2015.
Efforts to prevent and deter cyberbullying need to be diverse and keep up with
the changing technologies that young people use, including dark social and
disappearing media such as Snapchat.
The focus on children and online safety was in response to
evidence that unwelcome comments and threats were increasingly common on social
media, causing vulnerable young people to suffer mental health issues including
depression and anxiety, and some resulting in suicide. However:
while bullying has unfortunately long been a negative part of
school life and, to some extent, the workplace and other institutional
settings, its migration to the online environment magnifies its reach and hence
the harm that can be caused. Online bullying can happen at any hour of the day,
or late at night. It can be seen by many others, particularly if done on social
media, or by the victim alone. It can be experienced as an acute personal
attack, and as degradation within a peer group. It can be joined in by others,
again magnifying its negative consequences.
In that light, age is no barrier and adults are also
frequently subjected to online harassment and bullying with similar
consequences to their mental and sometimes physical health. Adults may be
subjected to any number of cyberbullying forms including online trolling and
harassment, hacking and impersonating someone online, stalking, and derogatory
It is possible for the subject of the offensive behaviour to be unaware of its
existence for some time. This can increase the level of mental anguish when the
victim does become aware of any form of cyberbullying and online harassment,
particularly if the cyberbullying is the sharing of intimate images without
consent. The Government is seeking to expand the functions of the eSafety
Commissioner to assist a broader range of vulnerable Australians, including
older Australians, victims of domestic and family violence, and people who have
had intimate images shared without their consent (often referred to as ‘revenge
porn’). 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.
In 2016, as part of its commitment to reducing violence
against women and their children, the Council of Australian Governments agreed
[b]uilding on the progress by all jurisdictions to prevent
technology-facilitated abuse... Leaders took a further step towards preventing
online abuse of women by agreeing to develop principles for nationally
consistent criminal offences relating to non-consensual sharing of intimate
images. The significant work of the Victorian Royal Commission into Family
Violence was also recognised, with Leaders agreeing to consider a number of the
report recommendations requiring national agreement and cross-jurisdictional
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. More broadly
than this Bill, the Government has committed to a ‘a public consultation
process of a proposed civil penalties regime targeted at both perpetrators and
sites which host intimate images and videos shared without consent.’
In the second reading speech on the Bill, the Government
highlighted its commitment to improving the digital confidence and skills of
older Australians. The changes to the eSafety Commissioner’s functions complement
some existing work that the Commissioner is doing with the Department of Social
Services to develop a digital inclusion and online safety strategy for older
Australians. The changes made in this Bill will give the Commissioner greater
scope to support older Australians ‘ensuring they have the skills to
participate in our modern digital economy’.
to combat cybercrime
One way in which cyberbullying is presently addressed is
as part of the Australian Cybercrime Online Reporting Network (ACORN), a
national policing initiative of the Commonwealth, state and territory governments.
It is a national online system that allows the public to securely report instances of cybercrime.
It also provides advice to help people recognise and avoid common types of
The ACORN is a key initiative under the National Plan to Combat
Cybercrime, which sets out how Australian agencies are working
together to make Australia a harder target for cybercriminals. The ACORN has
been designed to make it easier to report cybercrime and help develop a better
understanding of the cybercrime affecting Australians. By understanding the
enablers of cybercrime, we can make it harder and less rewarding to commit
manages cyberbullying reporting for adults and lists the following conduct as
types of cyberbullying:
- posting hurtful messages, images or videos online
- repeatedly sending unwanted messages online
- sending abusive texts and emails
- excluding or intimidating others online
- creating fake social networking profiles or websites that are
- nasty online gossip and chat, and
- any other form of digital communication which is discriminatory,
intimidating, intended to cause hurt or make someone fear for their safety.
responses to cyberbullying
Online harassment can also present itself as vilification,
directed at a particularly individual or group, or a person’s race, ethnicity,
religious denomination or sexual orientation. In these cases, a victim of
online harassment can make a complaint to the Australian Human Rights
Importantly, there are existing criminal offences under the Commonwealth Criminal
Code that capture cyberbullying against both adults and children. Section
474.17 of the Criminal Code makes it an offence to use a carriage
service (internet, social media, phone, et cetera) to menace, harass or cause
offence. The maximum penalty for this offence is three years imprisonment or a
fine of more than $30,000. Further, there are stalking offences in each state
and territory that are applicable to online conduct, carrying significant
Standing Committee for the Scrutiny of Bills
It its Scrutiny Digest, the Senate Standing Committee for
the Scrutiny of Bills had no comment on the Bill.
The Bill has not been referred to any other Committee.
The Explanatory Memorandum states that the Bill will have
no financial impact.
of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.
Joint Committee on Human Rights
The Parliamentary Joint Committee
on Human Rights has made no comment on the Bill in its Scrutiny Report.
The amendments to the function of the Commissioner by items
18 and 19 of the Bill, together with item 27, means that a
broader class of information could potentially be disclosed under subsection
80(1). As explained in the Explanatory Memorandum to the Bill:
In other words, the Commissioner will be permitted to
disclose a broader class of information to any of the specified authorities if
the Commissioner is satisfied that it would enable or assist the particular authority
to perform or exercise any of its functions or powers.
Schedule 1, item 4 will update and clarify the simplified
outline of the Act. Existing section 3 will be amended to provide that the
functions of the Commissioner include:
online safety for Australians
a complaints system for cyber-bullying material targeted at an Australian child
activities of Commonwealth Departments, authorities and agencies relating to
online safety for children and
the online content scheme under the Broadcasting Services Act 1992.
Items 7–10 will insert the following new
definitions into section 4:
means individuals who are ordinarily resident in Australia
safety for Australians means the capacity of Australians to use social
media services and electronic services in a safe manner.
The Explanatory Memorandum is clear in distinguishing the ‘soft’
functions of the Commissioner from the complaints scheme for cyber-bullying material
that targets Australian children. This Bill will allow the former to apply to
all Australians and includes (at Schedule 1, item 18):
online safety for Australians (amended paragraph 15(1)(b))
and encouraging the implementation of measures to improve online safety for Australians
(amended paragraph 15(1)(c))
analysing, interpreting and disseminating information relating to online safety
for Australians (amended paragraph 15(1)(e))
encouraging, conducting, accrediting and evaluating educational, promotional
and community awareness programs that are relevant to online safety for
Australians (amended paragraph 15(1)(f))
on behalf of the Commonwealth, grants of financial assistance in relation to
online safety for Australians (amended paragraph 15(1)g))
encouraging, conducting and evaluating research about online safety for
Australians (amended paragraph 15(1)(h))
(whether on the internet or otherwise) reports and papers relating to online
safety for Australians (amended paragraph 15(1)(i))
the Minister reports about online safety for Australians (amended paragraph
the Minister about online safety for Australians (amended paragraph 15(1)(k))
and cooperating with other persons, organisations and governments on online
safety for Australians (amended paragraph 15(1)(l)).
The Government does not intend for the complaints scheme
for cyber-bullying material that targets Australian children to be expanded to
cover all Australians.
Part 2 of Schedule 1 makes a number of
consequential amendments, allowing for the name change from Children’s e-Safety
Commissioner to eSafety Commissioner in the Australian Communications and
Media Authority Act 2005, Broadcasting Services Act 1992, Criminal
Code Act 1995, Freedom of Information Act 1982 and Telecommunications
The decision to expand the functions of the eSafety Commissioner
is one that broadly complements existing legislative arrangements for
Australian adults to address cyberbullying, cyberhate, trolling and other
malicious and offensive online behaviour. The Bill does not present a
significant policy shift or raise significant legal issues.
further background on cyberbullying and the establishment of the Children’s
e-Safety Commissioner, see G Butler, Enhancing
Online Safety for Children Bill 2014, Bills digest, 78, 2014–15, Parliamentary
Library, Canberra, 2 March 2015.
a broad explanation of social networking services, see JI Grant, ‘Don’t
be in the dark about “dark social”’, Office of the Children’s eSafety
Commissioner website, 7 March 2017.
Urbas, Cybercrime: legislation, cases and commentary, LexisNexis
Butterworths, Sydney, 2015, p. 249.
for an Australian example, the impact
of cyberbullying on adults. Much of the research on cyberbullying is
focused on children and young people but it is broadly recognised that
cyberbullying can contribute to mental health issues and suicide in adults.
of Australian Governments (COAG), Communique,
COAG Meeting, Canberra, 9 December 2016, p. 3.
reading speech: Enhancing Online Safety for Children Amendment Bill 2017’, House
of Representatives, Debates, 9 February 2017, p. 470.
Cybercrime Online Reporting Network (ACORN), ‘About the ACORN’, ACORN website.
Human Rights Commission (AHRC), ‘Know
your rights: racial discrimination and vilification’, AHRC website.
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 2, 2017, The Senate, 15 February 2017, p. 15.
Memorandum, Enhancing Online Safety for Children Amendment
Bill 2017, p. 3.
Statement of Compatibility with Human Rights can be found at page 4 of the
Explanatory Memorandum to the Bill.
Joint Committee on Human Rights, Report,
1, 2017, The Senate, Canberra, 16 February 2017, p. 32.
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