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The Online Safety Bill will pass Parliament after Labor offered its support for the controversial legislation despite being “not happy” about the way it has been delivered, and the Greens labelling it “utterly undercooked”.
The legislation was briefly debated in the Senate this week and will likely pass the upper house next week, with the support of Labor after the Opposition negotiated a numer of amendments with the government.
The Online Safety Bill extends the online content takedown scheme to Australian adults, allowing for the issuing of removal notices for content deemed to be rated as R18+ and higher, and to order the sites and apps to be blocked if they don’t comply.
Communications minister Paul Fletcher has said the bill “gives new protections for Australian adults subjected to seriously harmful cyber abuse” and “widens” the powers of the eSafety Commissioner.
The draft legislation was unveiled in December last year, with a consultation process following which many dubbed “rushed”. Submissions on the draft legislation were open during the Summer break, with more than 400 received.
Despite this, the legislation was introduced to the power house just 10 days later, where it was quickly referred to a senate committee for inquiry. Stakeholders were only given three working days to make a submission to this inquiry, with the legislation eventually given the green light.
Communications Minister Paul Fletcher with eSafety Commissioner Julie Inman Grant
There are significant concerns around the impact of the new powers on the adult industry, the investment of huge powers in a single individual in the eSafety Commissioner and the potential for it to further undermine encryption.
Despite these concerns, the Online Safety Bill was broadly supported in the Senate by Coalition and Labor Senators on Wednesday afternoon.
The Greens moved an amendment to have the bill withdrawn, and said they would eventually vote against the legislation.
The government will move an amendment to its own legislation with the support of Labor, introducing increased reporting requirements for the eSafety Commissioner on how the new powers are utilised, and a new internal review mechanism for these decisions.
Liberal Senator Andrew Bragg spoke in support of the Online Safety Bill, linking it to the news media bargaining code passed by Parliament earlier this year.
“What it really does is bring to bear a simple, single framework for online safety. I think setting out the basic online safety expectations and arming the eSafety Commissioner with the power to effectively ensure that people are protected will be broadly welcomed,” Senator Bragg said.
“What we don’t want to see is people being bullied and harassed online. We’re balancing civil liberties against the desire to protect people, and these are judgements that should be exercised by a minister and they should be disallowable, and that is the intention.”
A number of Labor Senators raised concerns about the legislation and the process behind its legislation, but the Opposition will eventually vote in support of it.
Labor Senator Louise Pratt said that the rushed process behind the legislation had “significantly undermined confidence” in it, and that the Opposition shared many of the concerns about its substance too.
“There’s an important balance to be found here around free speech and protections against certain types of speech. We’re concerned this bill represents a significant increase in the eSafety Commissioner’s discretion to remove material without commensurate checks and balances,” Senator Pratt said.
The Senator also said that the new powers could be used to “stifle” debate and free speech if placed in the wrong hands, and that the government’s amendments did not go far enough.
Labor Senator Nita Green summed up the party’s position on the bill, saying they would be supporting it but weren’t happy about that.
“While Labor will be supporting this bill we’re certainly not happy with how it is being delivered,” Senator Green said. “There’s a lot we don’t know about how this bill will be implemented.”
Greens Senators called on the government to completely redraft the bill in order to take into account concerns around the use of the National Classification Code, the potential for the powers to be used against lawful online content creators, the inadequate rights for review and inadequate transparency.
The Greens will also move amendments requiring an independent review of the Act in two years time, and that reasonable steps are taken to ensure the material being taken down is not removed unnecessarily, and for the impact on freedom of expression to be minimised.
Greens Senator Nick McKim raised concerns that the legislation will lead to an increase in the use of automation and AI by big tech companies to remove potentially offending content.
“The use of AI and algorithms in similar circumstances in places like the US has been extremely controversial to say the least, and we are concerned that the use of those technologies could lead to disproportionate outcomes like blanket bans, even if that is not the intent of the Commissioner,” Senator McKim said.
“This chamber should have taken the time to make sure we get it right and we avoid to the greatest extent possible any unintended consequences flowing from this legislation. The Australian Greens are disappointed that this chamber has not been given that opportunity.”
Fellow Greens Senator Jordan Steele-John also slammed the handling of the bill, saying it is “totally and utterly undercooked” and that it had been “rammed through in the shortest possible time”.
A Liberal Senator has failed in his second attempt to launch an inquiry into the influence of Big Tech in Australia, after the motion was blocked by Labor and the crossbench.
South Australian senator Alex Antic moved a motion on Tuesday for the establishment of a Select Committee on Big Tech Influence in Australia, which would look into disinformation, “de-platforming”, fake accounts and the extent that the likes of Facebook and Google comply with local laws.
But the attempt was dismissed by Labor, who said there are already too many select committees, and the Greens, who took issue with the language of the motion, which they said was used “overwhelmingly by the far right”.
Big Tech: The senate has declined to establish a new select committee to investigate
Senator Antic had originally planned to move the motion last month, but put this on hold. This was the same day that the government announced it had reached an agreement with Facebook over its media bargaining code, with news allowed back on the social media platform.
He tried again on Tuesday, attempting to launch a select committee that would investigate and report on the activity of major international and domestic tech firms, specifically looking at disinformation, misinformation, shadow banning, de-platform and monetisation, fake accounts and bots, the companies’ terms of service and their compliance with Australian law.
The motion was voted down with Senators drawn at 32 votes for and against.
Labor voted down the motion due to the amount of Select Committees already operating.
“We were advised by the government that they are concerned at the number of Select Committees that are currently operating in the Senate and at the level of work references committees have – that Select Committees are perhaps filling part of the role that references committees had in the past – only to be given this motion on the Notice Paper,” Labor Senator Katy Gallagher said.
“So we won’t be supporting this today, based on the government’s own advice that there are too many Select Committees at this point in time.”
Crossbench Senator Rex Patrick also voted against the motion for this reason, saying it would mean there are 10 Select Committees, even though it is recommended there should only be three at any one time.
Senator Patrick said he would have supported an inquiry by a references committee into Big Tech.
The Greens voted against the motion due to the language used in it.
“There is no doubt that we do need an inquiry into the influence of Big Tech in this country, particularly its impact on our democracy and our media and the way that Big Tech has allowed for the proliferation of far-right extremism on digital platforms in Australia,” Greens Senator Nick McKim said.
“However, this motion contains language which concerns the Greens. It is language which is used overwhelmingly by the far right, including terms like shadow-banning and deplatforming.
“While we won’t be supporting this motion today, we do remain open minded and of the view that we need to have a look at some of the impacts of the Big Tech sector on those areas I mentioned earlier.”
Shadow industry minister Ed Husic last month labelled the attempted motion a “joke”.
“On so many levels this was a joke and a poor one at that. There are countless reports gathering dust now on what needs to be done to combat some of the excesses in technology that this government has ignored,” Mr Husic told InnovationAus in February.
“On top of that did anyone seriously think that this government that had pulled the handbrake on implementing Royal Commission recommendations against big banks was serious about a Big Tech inquiry that would produce a report that would go nowhere?”
The government will move to amend the Online Safety Bill to provide more transparency and reviews after the controversial legislation was passed by the lower house with support from the Opposition.
The Online Safety Bill hands new powers to the eSafety Commissioner, extending the online content takedown scheme to Australian adults, and allows for the issuing of removal notices for content deemed to be rated R18+ or higher, and to order the site or app to be blocked if it refuses.
A set of basic safety expectations will also be outlined for Big Tech as part of the legislation.
The legislation was given the green light by a Senate committee on Friday, and was passed by the House of Representatives on Tuesday afternoon.
Online safety: Labor will support governments controversial bill, albeit with amendments
Labor supported the legislation in the lower house but is expecting a number of government amendments in the Senate to address the myriad concerns around the bill.
Shadow cybersecurity spokesman Tim Watts acknowledged concerns about the bill, including that it vests significant power and discretion with the eSafety Commissioner, its lack of transparency about how this power would be used, its potential impact on the sex industry and for it to be used to remove content that is in the public interest.
The government has been unable to address these stakeholder concerns, Mr Watts said
“The safety of Australians online is of paramount importance and Labor will work with the government to iron out concerns with these bills in time for debate in the senate,” Mr Watts said in Parliament.
“But in the meantime, Labor will not oppose these bills and we support passage through this place on the understanding that government amendments are forthcoming,” he said.
“Labor considers that the government must 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 government amendments are expected to include increased reporting from the eSafety Commissioner on how the new powers are utilised, and a new internal review mechanism regarding these decisions.
On Tuesday morning the Greens announced that they would be voting against the legislation, calling for it to be withdrawn and redrafted as it is “poorly drafted and could lead to widespread, unintended consequences”.
“This bill would make the eSafety Commissioner the sole arbiter of internet content in Australia. It creates extraordinary powers for any one person to hold, let alone an unelected bureaucrat,” Greens senator and digital rights spokesperson Nick McKim said.
“It also fails to provide for timely reviews or appeals of decisions made by the eSafety Commissioner. We are concerned that people opposed to sex work, pornography and sexual health for LGBTIQ+ people could abuse the complaints process to seek to have lawful online content removed. Public interest news that involves violent imagery, such as footage of police violence, could also be taken down.”
While the Online Safety Bill has been discussed by the government for several years, it recently only gave stakeholders four working days to make submissions to the senate inquiry into the final piece of legislation, which was introduced to Parliament just a week after nearly 400 submissions were received on it.
This short timeframe has “undermined confidence” in the process, Mr Watts said.
“It is disappointing that the government has proved incapable of conducting a process that satisfies stakeholders in terms of process and substance,” he said.
There is also a “worrying lack of conceptual and operational clarity” around how the new powers will work, with Mr Watts pointing to eSafety Commissioner Julie Inman Grant recently saying that the “sausage” is still being made.
“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 checks and balances,” Mr Watts said.
“It doesn’t take much imagination to foresee a situation where, in the hands of an overzealous eSafety Commissioner, legitimate speech could be silenced – whether of racial or religious minorities expressing outrage at racist speech, or of women expressing outrage at sexual violence in the workplace.”
