Labor Senators note that it has been almost two and a half years since the Briggs Review (October 2018) recommended a single up-to-date Online Safety Act. Given the significant passage of time it is disappointing that the Government has proved incapable of conducting a process that satisfies stakeholders in terms of process and substance.
We note that the Government has been spruiking this new Online Safety Act for almost two years. In the lead up to the May 2019 federal election, the Morrison Government promised to introduce a new Online Safety Act. In September 2019, the Minister for Communications spruiked the new Online Safety Act in answer to questions about what the Government was doing to keep Australians safe online, including in relation to the rise of right-wing extremism, online hate speech and racism in Australia following the Christchurch terrorist atrocity.
A year later, in September 2020, the Minister again spruiked the non-existent Online Safety Act in response to questions about what the Government was doing to curb graphic content on social media platforms in the wake of a self‑harm video on Facebook and Tik Tok. The Minister's October 2020 op-ed kept the promise of a new Online Safety Act alive, while his Department at Senate Estimates put the delay down to "pressures on drafting resources".
After all this time, we note that a number of stakeholders are concerned the Government introduced the bill into Parliament on 24 February 2021, only eight business days after consultation on the exposure draft of legislation concluded on 14 February 2021. The short timeframe at the end of this drawn‑out process has undermined confidence in the Government's exposure draft consultation process, with a number of stakeholders concerned that submissions have not been considered properly.
At the time the bill was referred to this committee on 25 February 2021, Labor Senators had no visibility of either the number of submissions that had been made on the exposure draft or of the range or nature of concerns raised in those submissions. In evidence to the inquiry, the Department confirmed that 376 submissions on the exposure draft were received and were uploaded and made available publicly only the day prior to the inquiry hearing.
The Department further advised that it assessed the submissions and identified 56 issues that warranted further consideration by the Minister and that seven amendments of a technical nature were made to the bill as a result of that consideration.
Labor Senators note that a significant proportion of this bill falls into the category of "regulatory housekeeping" in that it consolidates various online safety laws into the one bill, with some updates. We consider that this housekeeping could have been achieved much sooner.
We note the Review of Australian classification regulation, for which public consultation closed over a year ago on 19 February 2020, is delayed and has fallen out of step with this reform process as a result.
We further note that key operational elements of this bill, such as for the novel adult cyber-abuse scheme, remain to be worked through. As reported by InnovationAus and ZDNet, in evidence to the inquiry, the eSafety Commissioner described that the Online Safety 'sausage is still getting made.’
We note that a number of stakeholders remain concerned about a range of significant matters, including how the bill interacts with the framework of safeguards put in place by the Telecommunications Assistance and Access regime as well as matters that interact with freedom of speech.
Labor Senators consider that finding the balance between free speech and protections against certain kinds of speech is a complex endeavour and we are concerned that this bill represents a significant increase in the eSafety Commissioner's discretion to remove material without commensurate requirements for due process, appeals or transparency over and above Senate estimates, annual reporting and AAT appeals.
While supportive of a scheme for adult cyber-abuse, Labor Senators find it curious that a Government that has made repeated attempts to repeal section 18C of the Racial Discrimination Act on the grounds that it unduly restricts free speech despite the availability of defences in section 18D, is now seeking to rush through a bill that empowers the eSafety Commissioner with discretion to determine matters of speech in relation to adult cyberbullying without greater checks and balances.
This Government talks a big game about its "expectations" of social media platforms yet to date it has failed to do its job by updating Australia's online safety laws. While the Government is right to expect digital platforms to offer more in terms of transparency, so too must the Government be prepared to provide transparency around decision-making, particularly on matters that engage with human rights.
For this reason, Labor Senators recommend that the Government consider further amendments to clarify the bill in terms of its scope and to strengthen due process, appeals, oversight and transparency requirements given the important free speech and digital rights considerations it engages.
Labor Senators thank stakeholders for their time, consideration, submissions and evidence to the inquiry.
Senator Nita Green
Senator Catryna Bilyk