Australia’s new Online Safety Bill was introduced to Parliament on February 24, eight business days after consultation on the draft legislation closed and before the submissions to the consultation were published. It was handed to a Senate committee on February 25 and after holding one public hearing, the committee has handed down its report.
Despite testimony from tech companies and civil liberties groups, the Environment and Communications Legislation Committee has made a total of two recommendations.
One of the recommendations simply state: “The committee recommends that the Bills be passed”.
The Online Safety Bill 2021 contains six key priority areas: A cyberbullying scheme to remove material that is harmful to children; an adult cyber abuse scheme to remove material that seriously harms adults; an image-based abuse scheme to remove intimate images that have been shared without consent; basic online safety expectations for the eSafety Commissioner to hold services accountable; an online content scheme for the removal of “harmful” material through take-down powers; and an abhorrent violent material blocking scheme to block websites hosting abhorrent violent material.
The Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021, meanwhile, repeals the Enhancing Online Safety Act 2015 upon commencement of the new Online Safety Act.
370 submissions were made to the draft consultation; at the time of publishing, 135 of the submissions made to the committee were public.
Google, Twitter, and Twitch all raised concerns that the definitions contained within the Bill were too broad; Electronic Frontiers Australia (EFA) joined the tech giants in considering the powers given to the eSafety Commissioner as too overreaching; and the Australian Digital Rights Watch highlighted the many negative impacts on the country’s adult industry, as some examples.
Setting these concerns aside, the committee’s other recommendation was that the government consider amending the Bill’s explanatory memorandum to clarify the requirement for an industry code to be registered within six months. It explained that this would be “for best endeavours and that the Commissioner has the discretion to work with industry over whatever timeframe is deemed necessary to achieve an effective outcome”.
Labor’s notes on the Bill include pointing to ZDNet’s article, which highlights that key operational elements of the Bill are yet to be worked through.
“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,” they add, even though no committee recommendations actually reflect their concerns.
The opposition does, however, want the government to 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”.
The Australian Greens, meanwhile, raised concerns with the Bill being rammed through the Parliament through a truncated inquiry process without consideration by either the Senate Standing Committee for the Scrutiny of Bills, or the Parliamentary Joint Committee on Human Rights.
As a result, the Greens recommend the Bill be withdrawn and redrafted to take account of concerns such as the use of the National Classification Code, which is currently under review; potential for elements of the Bill to be used against lawful online content and content creators; inadequate rights of appeal and remedy for businesses and individuals whose content is wrongly blocked or removed; inadequate transparency and accountability regarding discretionary decisions made by a single, unelected officer; powers covering restricted access/encryption services; and potential significant and detrimental effects on sex workers.
A second and final recommendation by the Greens has called for the introduction of a constitutionally or legislatively enshrined Charter of Rights, which includes privacy and digital rights consistent with the European Union’s General Data Protection Regulation.
