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Enhancing Online Safety for Children Bill 2014



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ISSN 1328-8091

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BILLS DIGEST NO. 78, 2014-15 2 MARCH 2015

Enhancing Online Safety for Children Bill 2014 Genevieve Butler Law and Bills Digest Section

Contents

The Bills Digest at a glance ................................................... 3

Purpose of the Bill ............................................................... 3

Structure of the Bill ............................................................. 4

Background ......................................................................... 4

Bullying in the 21st Century .................................................... 4

Prevalence of cyber-bullying in Australia ................................ 5

Impact of cyber-bullying .......................................................... 6

Lack of action by social media platforms ................................ 6

Significance of the Bill.............................................................. 7

Previous reports ...................................................................... 8

Committee consideration .................................................... 8

Senate Environment and Communications Legislation Committee ............................................................................... 8

Senate Standing Committee for the Scrutiny of Bills .............. 8

Policy position of non-government parties/independents ..... 9

Australian Labor Party (ALP) .................................................... 9

Financial implications .......................................................... 9

Statement of Compatibility with Human Rights .................. 10

Key issues and provisions................................................... 10

What is cyber-bullying material? ........................................... 10

The complaints process ......................................................... 11

Removal of cyber-bullying material from social media services .................................................................................. 12

Tier 1 social media services ................................................. 12

Tier 2 social media services ................................................. 13

Concerns over the civil penalty scheme ................................ 14

Date introduced: 3 December 2014

House: House of Representatives

Portfolio: Communications

Commencement: Sections 1 and 2 commence on Royal Assent. Sections 3 to 108 commence on the earlier of a day fixed by Proclamation, or six months 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 Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website.

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Power to delegate functions and powers to private companies ............................................................................. 14

Jurisdictional reach ................................................................ 15

Implementation risks regarding social media services based in foreign jurisdictions .............................................. 16

Accreditation of educational programs ................................. 16

Human Rights considerations ................................................ 17

The right to freedom of expression ..................................... 17

The right to protection from unlawful attacks on honour and reputation ........................................................ 18

The right to privacy ............................................................. 19

The right to certain minimum guarantees in criminal proceedings ......................................................................... 19

Best interests of the child ...................................................... 20

Aboriginal and Torres Strait Islander children and young people .................................................................................... 21

Other provisions ................................................................ 21

Statutory Review ................................................................... 21

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The Bills Digest at a glance • The Enhancing Online Safety for Children Bill 2014 (the Bill) establishes a new independent statutory office, the Children’s e-Safety Commissioner, within the Australian Communications and Media Authority (ACMA).

• This is the first time that specific regulation to address cyber-bullying has come before Parliament, addressing the gap between the issues that are able to be resolved by schools, and those that are of a criminal nature that can be dealt with by police.

• The Children’s e-Safety Commissioner will have the power to conduct investigations.

• A key function of the Commissioner is to administer a complaints system for cyber-bullying material targeted at an Australian child. The Bill contains enforcement provisions for the complaints system.

• The Bill introduces a two-tiered scheme for the rapid removal of cyber-bullying material from social media services. Social media services will participate under Tier 1 on a cooperative basis, or be declared to be a Tier 2 service. The key difference is that under Tier 1, there is no legal obligation on the social media service to comply with a request from the Commissioner to remover cyber-bullying material, whereas those declared to be Tier 2 will be subject to legally binding notices or face the risk of civil penalties for non-compliance.1

• Social media services are expected to comply with basic online safety requirements, including minimum standards in their terms and conditions of use that prohibit the posting of cyberbullying material, a complaints scheme under which end-users can seek to have such material removed, and a dedicated contact person to whom the Commissioner can refer complaints that have not been dealt with adequately.

• The Commissioner can issue an end-user notice to a person who posts cyber-bullying material targeted at an Australian child. The notice can require the person to take all reasonable steps to ensure the removal of the material, refrain from posting further material targeted at the child, or apologise to the child for posting the material. An injunction may be sought from the Federal Circuit Court for a failure to comply with an end-user notice.

• The Commissioner’s responsibilities also include promoting online safety for children, coordinating activities with government departments and administering the online content scheme that is currently administered by ACMA. All existing online safety initiatives in the Department of Communications and the ACMA will be transferred to the Commissioner.2

• The Commissioner is able to delegate functions and powers to private companies.

• The Bill creates a Children’s Online Safety Special Account to fund the Commissioner’s activities. The funding to be allocated will be $6.7 million in 2014-15 and approximately $11 million per annum thereafter.3 The Commissioner’s approval will be required for any expenditure from the Special Account.

• The Bill seeks to balance freedom of expression with rights protective of honour, reputation and privacy. The Government considers that any limitation of these rights is reasonable, necessary and proportionate to the goal of enhancing online safety for children.

• The Bill has received bipartisan support.

Purpose of the Bill The purpose of the Enhancing Online Safety for Children Bill 2014 (the Bill) is to create a new statutory office, the Children’s e-Safety Commissioner, and provide for the Commissioner to administer a complaints scheme regarding harmful cyber-bullying material targeted at an Australian child. The Bill contains enforcement provisions for the complaints system.

The Bill is accompanied by the Enhancing Online Safety for Children (Consequential Amendments) Bill 2014 (the Consequential Amendments Bill).4 The Consequential Amendments Bill accords the new Children’s e-Safety

1. P Fletcher, ‘Second reading speech: Enhancing Online Safety for Children Bill 2014’, House of Representatives, Debates, 3 December 2014, p. 14038, accessed 24 February 2015. 2. Explanatory Memorandum, Enhancing Online Safety for Children Bill 2014, p. 38, accessed 27 February 2015. 3. Ibid., p. 6.

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Commissioner information gathering powers similar to those held by the Australian Communications and Media Authority (ACMA) under Part 13 of the Broadcasting Services Act 1992 (BSA).5 The Bill also transfers administrative responsibility for the Online Content Scheme from the ACMA to the Commissioner, and makes other consequential amendments.

Structure of the Bill This Bill is divided into ten parts:

• Part 1 provides definitions, including definitions of ‘cyber-bulling material targeted at an Australian child’ and ‘social media service’

• Part 2 establishes the Children’s e-Safety Commissioner and sets out the Commissioner’s functions and powers

• Part 3 establishes a complaints system for cyber-bullying material targeted at an Australian child

• Part 4 establishes a 2-tiered scheme for the rapid removal from large social media services of cyber-bullying material targeted at an Australian child. The Commissioner will have the power to investigate complaints as the Commissioner thinks fit

• Part 5 enables the Commissioner to give an end-user notice to a person who posts cyber-bullying material targeted at an Australian child requiring the person to take all reasonable steps to ensure the removal of the material, refrain from posting further material targeted at the child, and/or apologise to the child for posting the material. An injunction may be sought from the Federal Circuit Court for a failure to comply with an end-user notice

• Part 6 adopts enforcement arrangements set out in the Regulatory Powers (Standard Provisions) Act 2014 in respect of civil penalties, enforceable undertakings and injunctions. (The Regulatory Powers (Standard Provisions) Act sets out a framework to promote consistency in monitoring, investigatory and enforcement powers for Commonwealth agencies)6

• Part 7 sets out administrative provisions relating to the Commissioner, including provisions relating to appointment, employment terms and conditions, supplementary powers, delegation of functions and powers, annual reporting, requirements on the ACMA to assist the Commissioner and ministerial directions

• Part 8 establishes the Children’s Online Safety Special Account which will be used to fund the Commissioner’s activities

• Part 9 enables the Commissioner to disclose information to certain agencies and individuals, including teachers, school principals, or parents or guardians of an Australian child, to assist in resolving complaints and

• Part 10 sets out other miscellaneous provisions, including in relation to merits review of decisions, protections from civil and criminal proceedings and liability for damages, referral of matters to law enforcement agencies and the power for the Minister to make legislative rules.

Background Bullying in the 21st Century In her 2009 book Confronting Cyber-bullying, Shaheen Shariff contends that cyber-bullying is ‘a modern-day version’ of Golding’s 1959 classic tale Lord of the Flies, in which of a group of schoolboys on a deserted island bully the ‘weakest’ boy, culminating in his violent death.7 In equating peer cyber-bullying with a ‘Lord of the Flies Syndrome’ where no rule-makers are present, Shariff notes:

4. Parliament of Australia, ‘Enhancing Online Safety for Children (Consequential Amendments) Bill 2014 homepage’, Australian Parliament website, accessed 2 March 2015. The Bills Digest for the Consequential Amendments Bill is available at the Bill’s homepage. 5. Broadcasting Services Act 1992, accessed 27 February 2015. 6. Regulatory Powers (Standard Provisions) Act 2014, accessed 27 February 2015. For information on that Act see: J Murphy, Regulatory Powers

(Standard Provisions) Bill 2014, Bills digest, 73, 2013-14, Parliamentary Library, Canberra, 2014, accessed 27 February 2015. 7. S Shariff, Confronting Cyber-bullying: what schools need to know to control misconduct and avoid legal consequences, New York, 2009, p. 3.

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What frightens educators and policy makers is that cyber-bullying similarly puts students on a virtual island with no supervision and few rules. It might be assumed that this allows bullying to escalate to dangerous, even life-threatening levels. Further, the boys on the island realise that being ‘evil’ is easier when they assume a different persona, and so they paint their faces for anonymity before they attack. Cyber perpetrators who bully their peers are no different. They hide behind pseudonyms and well-disguised IP (Internet protocol) addresses, making it difficult, if not impossible, for the victim to determine the source of the threat. This anonymous nature of cyber-bullying is perhaps the most troubling of all, for it leaves victims wondering which of their classmates might be a cyber-aggressor.

8

The evolution of social media has made bullying easier to perpetrate. In the case of traditional school-yard bullying, several people might witness it, but today if a child is bullied on Facebook, thousands can see it, resulting in a ‘viral humiliation’ for the victim.9 Cyberbullying is a ‘24/7 invasive action, with anonymity for those who inflict this pervasive behaviour on Australian children’.10

Nickolas Vavaris MP also noted the way in which the anonymity of the online environment can facilitate bullying:

Some participants deliberately choose not to confront their victims face to face and, instead, hide behind keyboards using pseudonyms and online identities or avatars to unleash verbal assaults on those less suspecting with far-reaching psychological effects. 11

Prevalence of cyber-bullying in Australia A 2014 study estimated that about 20 percent of Australians aged 8-17 were victims of cyber-bullying during one year, with 463,000 children and youth estimated to have been affected.12 This study found that cyber-bullying has increased rapidly, suggesting that this may be due to:

• increasing numbers of children and young people having access to the internet and to smartphones, and their increasing propensity to use online methods to communicate:

- studies show that 53 percent of children own or access their first internet-connected device before they are ten years old.13 Half of 14 to 17-year-olds access the internet through mobile phones; 43 percent own a smartphone14 • the perception that cyber-bullying is more difficult to detect and that bullies are less likely to face

consequences, and lack awareness of the potential effects of cyber-bullying on victims.15

An Ipsos Social Research Institute survey of 24 countries in 2012 ranked Australia number one in the world for bullying on social networks like Facebook.16 Overall, Australia ranked fifth for cyber-bullying. Nine out of ten parents said the harassment occurred on social network sites such as Facebook.17

Ispsos director Ryan Williams told News Limited:

According to parents, Australian children were less likely to experience bullying in an online chat room, via email, or on their mobile phone, compared to global averages - but were more likely than any other nation to experience bullying via social networking sites, such as Facebook. 18

8. Ibid., p. 5.

9. W Roy, ‘Second reading speech: Enhancing Online Safety for Children Bill 2014, Enhancing Online Safety for Children (Consequential Amendments) Bill 2014’, House of Representatives, Debates, 12 February 2015, p. 35, accessed 24 February 2015. 10. Ibid.

11. N Varvaris, ‘Second reading speech: Enhancing Online Safety for Children Bill 2014, Enhancing Online Safety for Children (Consequential Amendments) Bill 2014’, House of Representatives, Debates, 23 February 2015, p. 72, accessed 24 February 2015. 12. I Katz, M Keeley, B Spears, C Taddeo, T Swirski, and S Bates, Research on youth exposure to, and management of, cyberbullying incidents in Australia: synthesis report, SPRC report 16/2014, Social Policy Research Centre UNSW, Sydney, 2014, accessed 24 February 2015. 13. Telstra, Safer internet and back to school survey, (internal report), January 2013, cited in: Explanatory Memorandum, Enhancing Online Safety

for Children Bill 2014, op. cit., p. 14. 14. Australian Communications and Media Authority (ACMA), Like, post, share: young Australians’ experience of social media - quantitative research report, 2013, cited in Explanatory Memorandum, Enhancing Online Safety for Children Bill 2014, op. cit., pp. 14-15. 15. Explanatory Memorandum, op. cit., p. 7. 16. News Ltd, ‘Anti-social network: Australia - the Facebook bullying capital,’ news.com.au, 18 January 2012, accessed 24 February 2012. 17. Ibid.

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Social media was identified in 2011 as the primary form of digital communication between children over 13, overtaking texts, emails and phone calls.19 Half of 8 to 11-year-olds use social media services, while 90 percent of 12 to 17-year-olds do so.20 University of New South Wales research shows that most reported cyber-bullying incidents occur on social media.21 A case study by the National Children’s and Youth Law Centre (NCYLC) identified Facebook (43 per cent), Snapchat (11 per cent), Ask.fm (ten per cent), Skype (five per cent), Tumblr (four per cent) and Kik (three per cent) as the main platforms used for cyber-bullying.22

Impact of cyber-bullying Cyber-bullying can be more pervasive than traditional bullying, as looking at a smartphone or computer instantly exposes a victim to a stream of derision, ridicule or hatred, and is thus difficult to escape.23 Social media ‘can envelop every waking minute, preventing victims of bullying and abuse from getting any respite. Social media's greatest threat is to our children, not because of the medium itself but because you can never be sure who is on the other end.’24

Like ‘traditional’ bullying, cyber-bullying can have lasting effects on the victims and their families. It can affect self-esteem, and cause behavioural and mental health problems like depression, fear, anxiety and suicidal thoughts.25 Some of the more extreme cases of cyber-bullying have been associated with youth suicide.26

In a study by the National Children’s and Youth Law Centre, victims in the 16-17 age group reported a broad range of harm resulting from cyber-bullying, including: feelings of embarrassment or shame; refusal/reluctance to engage in society; post-traumatic stress disorder; fear for safety; inability to continue with school; being forced to leave school and leave town; and leaving a job.27

Lack of action by social media platforms The Explanatory Memorandum notes that there is no data available on the number of complaints made by Australian children to service providers about cyber-bullying, nor any detail available on the outcomes of any such complaints:

Social media services do not publish information that enables assessment of how often they fail to respond appropriately to take down offending material. However, some qualitative evidence of major social media websites failing to respond appropriately to take down offending material has been provided via submissions to the public consultation on Enhancing Online Safety for Children, media reports and correspondence received by the Department of Communications.

28

During the parliamentary debate on the Bill, Ed Husic MP told the House of Representatives:

Social media services can do a lot more and have often been urged to do a lot more and have often been found wanting to achieve this. While I might be supportive of them in many instances, I am concerned that they fail to be responsive. It is not just me saying it; it is also the social media services themselves. For instance, the CEO of Twitter

18. Ibid.

19. ACMA, Like, post, share: young Australians’ experience of social media - qualitative research report, August 2011, cited in Explanatory Memorandum, Enhancing Online Safety for Children Bill 2014, op. cit., p. 15. 20. ACMA, Click and connect: young Australians’ use of online social media - 02: quantitative research report, Commonwealth of Australia, 2009, cited in Explanatory Memorandum, Enhancing Online Safety for Children Bill 2014, op. cit., p. 15. 21. Explanatory Memorandum, op. cit., p. 17. 22. Ibid., pp. 17. 23. Ibid., pp. 15. 24. K Pitt, ‘Second reading speech: Enhancing Online Safety for Children Bill 2014, Enhancing Online Safety for Children (Consequential

Amendments) Bill 2014’, House of Representatives, Debates, 12 February 2015, p. 76, accessed 26 February 2015. 25. Explanatory Memorandum, op. cit., pp. 8 and 15; News Ltd, ‘Anti-social network: Australia - the Facebook bullying capital,’ news.com.au, op. cit. 26. Explanatory Memorandum, p. 16. 27. M Keeley, I Katz, S Bates, & M Wong (2014) Research on youth exposure to, and management of, cyberbullying incidents in Australia: part B -

cyberbullying incidents involving Australian minors, the nature of the incidents and how they are currently being dealt with, SPRC report 10/2014, Social Policy Research Centre, UNSW, Australia quoted in: cited in Explanatory Memorandum, Enhancing Online Safety for Children Bill 2014, op. cit., p. 16. 28. Explanatory Memorandum, op. cit., p. 17.

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acknowledged that they do a pretty substandard job … at dealing with bullying and trolling. And we have seen some devastating impacts of that. 29

Leaked internal emails in February 2015 revealed that Twitter's chief executive Dick Costolo admitted to staff he was ‘ashamed’ and ‘embarrassed’ by how his company handled bullying and harassment among its users.30 Mr Costolo promised to tackle the issue of bullying: ‘We're going to start kicking these people off right and left and making sure that when they issue their ridiculous attacks, nobody hears them’.

Warren Entsch MP also addressed this issue:

We then ask: why are we creating a central point, and why do we need a commissioner to receive the complaints, when Australians could go directly to the social media business, whether it be Facebook, YouTube or Twitter? … we are doing this because we just cannot go to these people. We have commissioned research from the University of New South Wales Social Policy Research Centre and found that social media and other service providers are unaccountable. They are reluctant to take down offensive material and are often slow to respond to requests, even from the police.

31

However, Wyatt Roy MP noted that some progress had been made in this area:

The government acknowledges that many large social media sites have significantly improved their complaints-handling arrangements for removal of cyberbullying material. If a site receives a complaint and acts on it promptly there will be no need for the complaint to go to the Children's e-Safety Commissioner, and the scheme will have no impact at all on the operation of the social media provider. Only if the site does not comply or does not respond will the Children's e-Safety Commissioner get involved.

32

Significance of the Bill The online environment has been described as ‘a very unregulated part of life’.33 Justine Elliot MP noted that the Bill marked the first time that ‘a specific codified or hard regulation in this area exclusively has come before the Parliament’.34

A ‘clear gap’ has been identified between the issues that are able to be resolved by schools, and those that are of a criminal nature that can be dealt with by police.35 Currently, the parents of a victim of cyber-bullying can ask police to press charges,36 but due to resource constraints, only the most serious cases will be investigated.37 Under the Enhancing Online Safety for Children Bill 2014, parents will have the opportunity to go to a single point of contact rather than trying to raise these matters with law enforcement agencies.38

This Bill introduces laws governing the rapid removal of cyber-bullying material from large social media services, and addresses the powerlessness of cyber-bullying victims through a new complaints system for cyber-bullying.

Fiona Scott MP described the significant role the e-Safety Commissioner will play:

Children's e-Safety Commissioner will act as a new circuit breaker—somebody who has the legally binding power to confront cyberbullies head-on and show them the seriousness of their actions, somebody who can force

29. E Husic, ‘Second reading speech: Enhancing Online Safety for Children Bill 2014, Enhancing Online Safety for Children (Consequential Amendments) Bill 2014’, House of Representatives, Debates, 12 February 2015, p. 43, accessed 24 February 2015. 30. P McGrath, ‘Twitter CEO “ashamed” of how company handles cyber bullying, revenue growth threatened’, ABC News, 7 February 2015, accessed 24 February 2015. 31. W Entsch, ‘Second reading speech: Enhancing Online Safety for Children Bill 2014, Enhancing Online Safety for Children (Consequential

Amendments) Bill 2014’, House of Representatives, Debates, 23 February 2015, p. 69, accessed 24 February 2015. 32. W Roy, ‘Second reading speech: Enhancing Online Safety for Children Bill 2014, Enhancing Online Safety for Children (Consequential Amendments) Bill 2014’, House of Representatives, Debates, 12 February 2015, op. cit., p. 36. 33. C O’Neil, ‘Second reading speech: Enhancing Online Safety for Children Bill 2014, Enhancing Online Safety for Children (Consequential

Amendments) Bill 2014’, House of Representatives, Debates, 12 February 2015, p. 32, accessed 24 February 2015. 34. J Elliot, ‘Second reading speech: Enhancing Online Safety for Children Bill 2014, Enhancing Online Safety for Children (Consequential Amendments) Bill 2014, House of Representatives, Debates, 23 February 2015, p. 32, accessed 24 February 2015. 35. Explanatory Memorandum, Enhancing Online Safety for Children Bill 2014, p. 21, accessed 27 February 2015. 36. Division 474 of the Criminal Code governs telecommunications offences. 37. Explanatory Memorandum, Enhancing Online Safety for Children Bill 2014, op. cit., pp. 17-20. 38. K Pitt ‘Second reading speech: Enhancing Online Safety for Children Bill 2014, Enhancing Online Safety for Children (Consequential

Amendments) Bill 2014’, House of Representatives, Debates, 23 February 2015, p. 32, accessed 24 February 2015.

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cyberbullies to appropriately respond to their actions and somebody who can take the issue to the Federal Court if the cyberbully refuses to cooperate. 39

Tony Smith MP said the effect of the Bill would be far-reaching:

The creation of the commissioner with the powers of take-down, with the resources for materials in schools and with the power to issues notices to end users will not just make a practical difference in those cases; I believe what is at the core of this is to turn the tide culturally in something that really has been very difficult to grapple with. 40

Previous reports The Joint Select Committee on Cyber-Safety was established in 2010 under the former Labor Government. The Committee’s Report, High Wire Act: Cybersafety and the Young was released in 2011.41

While in opposition, the Coalition Online Safety Working Group produced a discussion paper on Enhancing Online Safety for Children, published in November 2012.42

The Joint Select Committee on Cyber-Safety tabled its report Issues Surrounding Cyber-safety for Indigenous Australians on 24 June 2013.43

The Department of Communications released a discussion paper Enhancing Online Safety for Children on 22 January 2014.44 More than 80 submissions to the public consultation are available on the Department’s website, including from community organisations, industry, education bodies, government bodies, legal bodies, academics and individuals.45

Committee consideration Senate Environment and Communications Legislation Committee The Bill has been referred to the Senate Environment and Communications Legislation Committee for inquiry and report by 3 March 2015. Details of the inquiry are on the Committee’s webpage.46

Senate Standing Committee for the Scrutiny of Bills The Senate Standing Committee for the Scrutiny of Bills examined the Bill and, in its Alert Digest No. 1 of 2015, published on 11 February 2015, made observations in relation to the following issues.

Delegation of legislative power

Paragraph 5(1)(c) provides that the legislative rules may add to the conditions which must be satisfied for material to constitute ‘cyber-bullying material targeted at an Australian child’. The Committee commented that the provision may be considered to delegate legislative powers inappropriately (discussed under Key Issues).

Broad discretionary power

Subclause 19(1) provides that the Commissioner may investigate a complaint made under clause 18. This is a discretionary power and the Commissioner is not obliged to investigate all complaints. The Committee

39. F Scott, ‘Second reading speech: Enhancing Online Safety for Children Bill 2014, Enhancing Online Safety for Children (Consequential Amendments) Bill 2014’, House of Representatives, Debates, 12 February 2015, p. 28, accessed 24 February 2015. 40. T Smith, ‘Second reading speech: Enhancing Online Safety for Children Bill 2014, Enhancing Online Safety for Children (Consequential Amendments) Bill 2014’, House of Representatives, Debates, 23 February 2015, p. 88, accessed 24 February 2015. 41. Joint Select Committee on Cyber-Safety, High-Wire Act: cyber-safety and the young, Interim report, House of Representatives, June 2011,

accessed 27 February 2015. 42. Coalition Online Safety Group, ‘The Coalition's discussion paper on enhancing online safety for children’, Australian Policy Online (APO) website, 19 November 2012, accessed 27 February 2015. 43. Joint Select Committee on Cyber-Safety, Issues surrounding cyber-safety for Indigenous Australians, report, House of Representatives,

Canberra, June 2013, accessed 27 February 2015. 44. Department of Communications, Enhancing online safety for children, Discussion paper, January 2014, accessed 27 February 2015. 45. Department of Communications, ‘Submissions to the public consultation on enhancing online safety for children’, Department of

Communications website, accessed 27 February 2015. 46. Senate Standing Committee on Environment and Communications, Enhancing Online Safety for Children Bill 2014 [Provisions] and the Enhancing Online Safety for Children (Consequential Amendments) Bill 2014 [Provisions], inquiry webpage, accessed 27 February 2015.

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considered that clause 19 may be considered to make rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers (discussed under Key Issues).47

Insufficiently defined administrative powers

Clause 16 provides that the Commissioner has the power to do all things necessary or convenient to be done for, or in connection with, the performance of his or her functions. The Committee noted that this provision may be considered to make rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers.48 However the Committee also noted that this clause may simply be the legislative expression of an implied incidental power.49

The Committee also noted that clause 64, which enables delegation by the Commissioner to a body corporate, may be considered to make rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers (discussed under Key Issues).

At the time of writing this Bills Digest, the Minister had not yet responded to the Committee’s concerns.

Policy position of non-government parties/independents At the time of writing, the Australian Greens, the Palmer United Party and Independents had not made any comments on this Bill that were available in the public domain.

Australian Labor Party (ALP) The ALP supports the Bill. Clare O’Neil MP told Parliament:

When we look at the options for young people about what they can do in the face of cyberbullying, there is no silver bullet. Yes, you can block someone from being online, but it is a bit like saying that bullying does not matter in a schoolyard context because you can leave the room, even when someone might continue to say humiliating things about you after you leave. The conduct and pain still occur, even if you are not there to see it.

50

This bill is not perfect. It is not going to solve all of our problems, but it makes an important step towards establishing a safe online community for Australian young people, and for that reason Labor will be supporting the bill. 51

Gai Brodtmann MP noted that the ALP supported the Bill, but would consider the need for any amendments to the Bill that may arise from the Inquiry of the Senate Environment and Communications Legislation Committee.52

Financial implications The Commissioner will be established as an independent statutory office within the ACMA. Funding for the Commissioner’s activities will be allocated to the Children’s Online Safety Special Account (the Special Account) established under Part 8 of the Bill.53

The funding to be allocated will be $6.7 million in 2014-15 and approximately $11 million per annum thereafter.54

The Commissioner’s approval will be required for any expenditure from the Special Account.

The Bill will not otherwise have a significant impact on Commonwealth expenditure or revenue.55

47. Ibid., p. 10. 48. Ibid., p. 9. 49. Ibid.

50. C O’Neil ‘Second reading speech: Enhancing Online Safety for Children Bill 2014, Enhancing Online Safety for Children (Consequential Amendments) Bill 2014, House of Representatives, Debates, op. cit., p. 33. 51. Ibid., p. 32. 52. G Brodtmann, ‘Second reading speech: Enhancing Online Safety for Children Bill 2014, Enhancing Online Safety for Children (Consequential

Amendments) Bill 2014’, House of Representatives, Debates, 23 February 2015, p. 70, accessed 24 February 2015. 53. Explanatory Memorandum, op. cit., p. 6. 54. Ibid.

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Statement 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.56 The Government considers that the Bill is compatible:

To the extent to which they may engage the right to freedom of expression, the right to protection from unlawful attacks on honour and reputation, the right to privacy and the right to certain minimum guarantees in criminal proceedings, any limitation is reasonable, necessary and proportionate to the goal of enhancing online safety for children.

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The Parliamentary Joint Committee on Human Rights concluded that the Bill does not raise human rights concerns.58

The human rights that are engaged by the Bill are discussed under the heading ‘Key issues and provisions’.

Key issues and provisions What is cyber-bullying material? Clause 5 sets out the criteria, including an objective test, for determining whether material submitted as part of a complaint to the Commissioner under clause 18 is ‘cyber-bullying material targeted at an Australian child’.

For material to constitute cyber-bullying material, it must be more than merely offensive or insulting. It must be such that a reasonable person would conclude that it is likely that the material was intended to have an effect on a particular Australian child, and it must be such that a reasonable person would conclude that the material would be likely to have the effect of seriously threatening, seriously intimidating, seriously harassing or seriously humiliating the Australian child (paragraph 5(1)(b)).

Paragraph 5(1)(c) enables other conditions to be included in the test of whether material is ‘cyber-bullying material targeted at an Australian child’ by making legislative rules (clause 108), if it becomes apparent that further conditions are required once the legislation is in operation. However, the Senate Standing Committee for the Scrutiny of Bills commented that this provision may be considered to delegate legislative powers inappropriately.59 Noting the central significance to the operation of the regulatory scheme of the definition of what material constitutes cyber-bullying, the Committee said it was not clear why frequent adjustments to the nature of the basic test for cyber-bullying set out in subclause 5(1) would be necessary. It also noted that the definition was relevant to a consideration of the appropriateness of the balance achieved between the competing rights of freedom of expression and rights protective of honour, reputation and privacy (see below). Given these factors, the Committee sought the Minister’s advice as to why it was not considered more appropriate that any adjustments to this test be brought directly before the Parliament through proposals to amend the primary Act.60

The definition of cyber-bullying is narrowed by subclause 5(4). This provision has the effect that material is taken not to be cyber-bullying material if the end-user who posted it was in a position of authority over the child, and posted the material in the lawful exercise of that authority, so long as the posting of the material is reasonable action taken in a reasonable manner. This exception was queried by the Victorian Commission for Children and Young People in a submission to the Senate Standing Committee on Environment and Communications:

55. Ibid.

56. The Statement of Compatibility with Human Rights can be found at page 7 of the Explanatory Memorandum to the Bill. 57. Ibid., p. 13. 58. Parliamentary Joint Committee on Human Rights, Eighteenth report of the 44th Parliament, p. 1, The Senate, 10 February 2015, accessed 27 February 2015.

59. Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 1 of 2015, The Senate, Canberra, 11 February 2015, pp. 8-9, accessed 27 February 2015 60. Ibid.

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The Commission questions why such an exclusion from the definition is required. It is difficult to determine in what circumstances it would be reasonable for a person in a position of authority over a child to post on social media material that is ‘seriously threatening, seriously intimidating, seriously harassing or seriously humiliating’. 61

The proposed definition was also questioned by the National Children’s and Youth Law Centre (NCYLC).62 The NCYLC argued that including the word ‘seriously’ in the definition set ‘an unduly high threshold which does not align with the current normative definitions of cyber‐bullying and which undermines the intent of the Bill to position the cyber‐bullying complaints mechanism as an alternative to criminal investigation processes’.63 The organisation recommended that the word ‘seriously’ be deleted from clause 5 to bring the Bill into line with existing legislative definitions.

The complaints process Part 3 of the Bill establishes a complaints system for cyber-bullying material targeted at an Australian child. An Australian child may make a complaint to the Commissioner if the child has reason to believe that he or she was or is the target of cyber-bullying material that has been, or is being, provided on a particular social media service or relevant electronic service (subclause 18(1)). Parents, guardians, or other responsible persons authorised by the child can also lodge a complaint on their behalf (subclause 18(2)).

A parent or guardian may make a complaint under subclause 18(2) against the wishes of the child, but it is expected that the Commissioner would consider the child’s views (as well as age and maturity) in deciding whether to investigate the complaint under clause 19.

Clause 18 also addresses evidentiary requirements for complaints about material that was provided on a social media service.

One of the implementation risks identified by the Government is that the Commissioner may receive a higher number of complaints than estimated. If the Commissioner becomes overburdened by the workload, this could result in complaints not being responded to in a timely and effective manner:

To mitigate this risk, the Commissioner would focus on complaints that cannot be handled more appropriately by a school or the police and where appropriate refer complaints to relevant organisations. To reduce duplication and minimise the number of complaints handled by the Commissioner, the Commissioner will work with schools and police to establish processes to work together, undertake an information campaign to outline the purpose and role of the Commissioner and develop guidelines for handling reports of cyber-bullying.

64

Under clause 19, the Commissioner has the power to investigate complaints. Under subclauses 19(2) and (3), the Commissioner may obtain information and make inquiries, as he or she thinks fit. The Commissioner is expected to develop appropriate procedures for the acceptance, investigation and closing of complaints. 65 However, the Law Council of Australia suggested that criteria should be included in the Bill to guide the way the Commissioner conducts inquiries, such as ensuring that any limitations on an individual’s rights are necessary, proportionate and reasonable in the circumstances.66

The Commissioner is not required to investigate all complaints made under clause 18, for example, complaints which are frivolous or vexatious, or complaints which may be best resolved by the relevant school.

If the Commissioner is satisfied that the material is of a sufficiently serious nature to warrant referral to a law enforcement agency, he or she can refer the matter in accordance with clause 92. In addition, subclause 19(5) provides that the Commissioner may terminate an investigation. The Explanatory Memorandum states that this may occur, for example, where the matter is of a criminal nature and would be better dealt with by police.

61. B Boland, Commission for Children and Young People (Victoria), Submission to Senate Standing Committee on Environment and Communications, 28 January 2015, accessed 1 March 2015. 62. National Children’s and Youth Law Centre, University of New South Wales, Enhancing Online Safety for Children’s Bill 2014: Exposure Draft, Comments, 12 November 2014, pp. 4-5, accessed 1 March 2015. 63. Ibid.

64. Explanatory Memorandum, op. cit., p. 28. 65. Ibid., p. 73. 66. Law Council of Australia, Submission to the Senate Standing Committee on Environment and Communications, Enhancing Online Safety for Children Bill 2014, 27 January 2014, p. 3, accessed 25 February 2015.

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However, no guidance as to when it might be appropriate to terminate an investigation is provided in the Bill itself.

A decision not to investigate a complaint is not merits reviewable under clause 88 of the Bill, but would be governed by the Administrative Decisions (Judicial Review) Act 1977 and section 39B of the Judiciary Act 1903.

The Senate Standing Committee for the Scrutiny of Bills raised concerns with the Bill’s approach to termination of investigations, considering that it may make rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers:

Although it may be accepted that there are circumstances in which a decision not to investigate a complaint may be well justified, it is unclear why more guidance about these circumstances cannot be included in the bill. In this respect it is noted that the only avenue to have a decision not to investigate reviewed is by way of judicial review— such decisions are not subject to merits review in the AAT [Administrative Appeals Tribunal]. For this reason, it may be considered desirable that some legislative guidance be given to structure the exercise of this broad discretionary power.

67

The Committee sought the Minister’s advice as to whether consideration had been given to including further legislative guidance about the criteria relevant to the exercise of this power.68

Removal of cyber-bullying material from social media services All social media services accessible to Australian children are expected to comply with the basic online safety requirements outlined in clause 21. There are three main requirements:

• a service’s terms of use must sufficiently prohibit cyber-bullying material (paragraph 21(1)(a))

• a service must have a complaints management scheme, under which end-users can seek to have material that breaches the service’s terms of use removed (paragraph 21(1)(b))

• a service must have a contact point for the Commissioner to refer complaints that users consider have not been adequately dealt with (paragraph 21(1)(c)).

The Bill introduces a two-tiered scheme for the rapid removal of cyber-bullying material from social media services. Social media services will either participate under Tier 1 on a cooperative basis, or be declared to be a Tier 2 service. The key difference is that under Tier 1, there is no legal obligation on the social media service to comply with a request from the Commissioner to remover cyber-bullying material, whereas those declared to be Tier 2 will be subject to legally binding notices or face the risk of civil penalties for non-compliance.69

Tier 1 social media services Division 2 of Part 4 provides for Tier 1 social media services. The provider of a social media service will be able to apply to the Commissioner for declaration of the service as a Tier 1 social media service (clause 23). The Commissioner will be required to make such a declaration if satisfied that the service complies with the basic online safety requirements and the service is not a Tier 2 social media service (subclause 23(4)).

The Commissioner has the power to request that the provider of a Tier 1 service remove cyber-bullying material targeted at an Australian child within 48 hours. Under this provision, the Commissioner must have received a complaint that the material was not removed within 48 hours (or such longer period as the Commissioner allows) following a complaint made under the service’s complaints scheme (clause 29).

As noted above, there are no direct enforcement measures in relation to Tier 1 services. However, if a Tier 1 service provider repeatedly fails to comply with requests to remove material over a 12 month period, or the Commissioner is satisfied that the service does not comply with the basic online safety requirements, the Commissioner may revoke the service’s Tier 1 status (clause 25).

67. Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 1 of 2015, The Senate, Canberra, 11 February 2015, p. 10, accessed 27 February 2015. 68. Ibid.

69. P Fletcher, ‘Second reading speech: Enhancing Online Safety for Children Bill 2014’, House of Representatives, Debates, 3 December 2014, p. 14038, accessed 24 February 2015.

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Tier 2 social media services Division 3 of Part 4 provides for Tier 2 social media services. These services are subject to direct regulation and are declared by the Minister, following a recommendation from the Commissioner, by a legislative instrument subject to Parliamentary disallowance (clause 30).70

The Commissioner must not make a recommendation that a social media service be declared a Tier 2 service if the service is a Tier 1 service. The Commissioner also must not make a recommendation unless satisfied that the service is a large social media service or the provider of the service has requested Tier 2 status. Tier 2 provisions are restricted to large social media services in order to capture sites that Australian children and youth are most likely to be using.71 In deciding whether to make a recommendation, the Commissioner must have regard to certain matters, including whether the service complies with the basic online safety requirements, whether the service has failed to apply for Tier 1 status or has had Tier 1 status revoked (clause 31).

The Commissioner will have the power to give a social media service notice to the provider of a Tier 2 service, requiring the provider to remove cyber-bullying material targeted at an Australian child within 48 hours. This provision covers situations where the Commissioner receives a complaint that such material on the Tier 2 service was not removed within 48 hours (or such longer period as the Commissioner allows) following a complaint made under the service’s complaints scheme (clause 35).

Clause 36 provides that a person must comply with a requirement under a social media service notice to the extent that they are capable of doing so. Breach of clause 36 is a civil penalty with a maximum penalty of 100 penalty units ($17,000).72 (This is the only civil penalty contained in the Bill.) Other enforcement options will be available in the form of enforceable undertakings and injunctions (clause 47 and clause 48).73

The Commissioner will maintain registers of Tier 1 and 2 social media services (clause 28 and clause 34).

The Commissioner will also be able to publish statements about non-compliant social media services under Division 4 of Part 4 in respect of social media services failing to comply with the basic online safety requirements, failing to comply with a request for removal of cyber-bullying material, or failing to comply with a social media service notice (clauses 38 to 40).

End-user notices

Part 5 of the Bill enables the Commissioner to give an end-user notice to a person who posts cyber-bullying material targeted at an Australian child, requiring the person to take all reasonable steps to ensure the removal of the material, refrain from posting further material targeted at the child, and/or apologise to the child for posting the material (clause 42). Clause 43 requires a person to comply with an end-user notice, to the extent that they are able to. The Commissioner can issue a formal warning if the person does not comply (clause 44).

An injunction will be able to be sought from the Federal Circuit Court for a failure to comply with an end-user notice (clause 48).

The Australian Interactive Media Industry Association’s (AIMIA) Digital Policy Group raised concerns about how the end-user notice scheme can be practically implemented:

If the person sending the communication is using a pseudonym and is not readily identifiable, then—depending on the nature of the service—it may be difficult for the Commissioner to send the notice to that end user. For example, some services operate on a “follow” model which means that you cannot send a direct message to a person unless they follow you (this model was designed as a protective measure to prevent harassment) and the end user in question may not follow the person they are bullying and/or may not follow the Commissioner, so it is unclear how the notice can be delivered. In addition, many online services give end users the choice about the amount of personal details they provide when registering for an account, and so may not have sufficient contact details for the

70. Explanatory Memorandum, op. cit., p. 4. 71. Ibid., p. 42. 72. Section 4AA of the Crimes Act 1914 (Cth) provides that a penalty unit is equal to $170. 73. Ibid., p. 4.

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sending of an end user notice, and in any event have clear policies that limit the disclosure of personal information to law enforcement and government agencies. 74

Concerns over the civil penalty scheme

The Law Council of Australia raised concerns that the purpose of the Bill may be undermined by the way the civil penalty scheme can be enforced:

 the Commissioner may request that a tier 1 social media service remove material, but there are no enforcement mechanisms if it fails to do so. For a social media service to be declared as a tier 1 service it must satisfy the Commissioner that it complies with “basic online safety requirements”. These requirements have a very low threshold and do not include other safeguards which would promote online safety, such as record keeping about complaints and their handling or timeframes for responding to complaints to ensure a prompt response. Such safeguards may be important in ensuring that the purpose of the Bill is achieved;

 revocation of a tier 1 declaration of social media service requires at least 12 months to have passed since the declaration was made, and that during that time the provider has repeatedly failed to comply with requests given to the provider to remove material. This is a long period in which serious consequences could occur from cyberbullying. The Bill does not appear to provide for any discretionary provisions enabling the Commissioner to revoke the tier 1 status if the provider has clearly failed to remove material with potentially serious consequences. This may undermine the object of the Bill to ensure that harmful material is removed quickly;

 tier 2 providers have to be declared by the Commissioner and the Commissioner can enforce requests for removal if a tier 2 provider fails to comply with them. The Law Council is uncertain why such powers would not apply to all providers who do not meet tier 1 status; and

 it does not appear that the tier 2 enforcement scheme applies to small providers. The characterisation of a ‘large social media service’ is unclear and is subject to the Commissioner’s discretion, having regard to certain factors. In addition, the Law Council questions whether small providers should also be captured to permit the Commissioner to enforce requests.

75

Power to delegate functions and powers to private companies Under clause 64, the Commissioner is able to delegate certain functions or powers to a company limited by guarantee that is specified in the legislative rules. This power of delegation enables non-statutory entities staffed by people outside the Australian Public Service (APS) to exercise the Commissioner’s powers. The Explanatory Memorandum does not address the rationale for this power of delegation to non-government decision-makers. It appears that the provision will be the first of its kind in Commonwealth legislation.

Subclause 64(1) provides that the Commissioner, may, by writing, delegate any or all of his or her functions and powers under Part 3 and 4 (except clauses 35 and 37) of the Bill to a body corporate that meets specific criteria. The body corporate must be specified in the legislative rules, be registered under Part 2A.2 of the Corporations Act 2001, and be a company limited by guarantee. The Minister may enter into an agreement with a body corporate, to which the Commissioner has delegated functions or powers, to remunerate the body corporate for performing or exercising those delegated functions or powers (subclause 64(5)).

Subclause 64(3) provides for the exchange of information between a delegated corporate entity and the Commissioner that is relevant to the performance of the functions or exercise of powers of the Commissioner. The Senate Standing Committee for the Scrutiny of Bills noted that a delegate of the Commissioner has coercive information gathering powers similar to those currently possessed by the ACMA under Part 13 of the Broadcasting Services Act 1992 (see Part 1 of the Enhancing Online Safety for Children (Consequential Amendments) Bill 2014).76

74. AIMIA Digital Policy Group, Submission to the Senate Standing Committee on Environment and Communications, Enhancing Online Safety for Children Bill 2014, January 2015, p. 8, accessed 27 February 2015. 75. Law Council of Australia, Submission to the Senate Standing Committee on Environment and Communications, Enhancing Online Safety for Children Bill 2014, 27 January 2014, p. 3, accessed 25 February 2015. 76. The Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 1 of 2015, 11 February 2015, pp. 10-11, accessed 1 March 2015.

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The Committee also noted that while the power to delegate the functions and powers of the Commissioner to government employees under clause 63 was limited to persons who were employed at least at level APS 6 or equivalent, no similar restrictions were included in relation to the employees of a delegated corporate entity who may exercise the Commissioner’s powers or perform his or her functions:

Furthermore, while clause 65 provides that employees of a delegated corporate entity may only act under a sub-delegation if they satisfy the conditions set out in the legislative rules, it is not apparent why necessary restrictions on the persons whom can exercise the Commissioner’s powers and functions should not be included the primary legislation.

77

Taking into account those factors, as well as the fact that the Explanatory Memorandum did not address the rationale for the power of delegation to non-government decision-makers, or the question of whether appropriate accountability mechanisms would be maintained for the performance of the Commissioner’s functions and exercise of the Commissioner’s powers, the Committee sought the Minister’s advice in relation to these matters.78

Subclause 66(2) requires that an Annual Report made under subclause 66(1) include a report on the operations under the Bill of a body corporate to which the Commissioner has delegated one or more functions or powers.

A Statutory Review three years after the commencement of the Bill (clause 107, discussed below) must consider whether a delegation should be made to a body corporate under subclause 64(1).

Jurisdictional reach Subclause 11(2) provides that the Bill extends to acts, omissions, matters and things outside Australia. This provision displaces the common law presumption that statutes do not apply extraterritorially.79

Clause 46 addresses civil penalty provisions, providing that such provisions are enforceable under Part 4 of the Regulatory Powers (Standard Provisions) Act 2014.80 There is only one civil penalty provision in the Bill— clause 36, which relates to failure to comply with a social media service notice (discussed above). Subclause 46(4) extends the applicability of Part 4 of the Regulatory Powers Act in relation to a civil penalty provision in the Bill to every external territory and to acts, omissions, matters and things outside Australia.

Clause 47 provides that clause 36 (the Bill’s sole civil penalty provision) is also enforceable under Part 6 of the Regulatory Powers Act, which deals with enforceable undertakings. Subclause 47(4) extends the applicability of Part 6 of the Regulatory Powers Act in relation to clause 36 of the Bill to every external territory and to acts, omissions, matters and things outside Australia.

Regarding injunctions, subclause 48(4) extends the applicability of Part 7 of the Regulatory Powers Act in relation to clauses 36 and 43 of the Bill to every external territory and to acts, omissions, matters and things outside Australia.

Clause 97 is a deeming provision setting out when a summons, process or notice is taken to have been served on, or given to, a provider of a social media service or to a body corporate incorporated outside Australia.81

Subclause 97(2) provides that a summons, process or notice is taken to have been served on a provider of a social media service if it is served on or given to an individual who is an employee or agent of the provider and has been designated as the service‘s contact person for the purposes of the Bill.

Subclause 97(3) provides that if a summons, process or notice is required to be served on, or given to a body corporate that is incorporated outside Australia, which does not have a registered or principal office in Australia, and has an agent in Australia; the summons, process or notice can be served on, or given to, the agent of the body corporate in Australia.

Subclause 97(4) clarifies that subclauses 97(2) and (3) have effect in addition to section 28A of the Acts Interpretation Act 1901, which deals with the service of documents.

77. Ibid.

78. Ibid.

79. Ibid. p. 70. 80. Regulatory Powers (Standard Provisions) Act 2014, accessed 27 February 2015. See page 4 of this Digest for further information. 81. Ibid., p. 95.

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Implementation risks regarding social media services based in foreign jurisdictions Many social media sites are based in foreign jurisdictions, raising questions about the capacity of the Australian Government to enforce the Bill: ‘There is potential difficulty in enforcing compliance with the legislative arrangements against large social media services which do not have an Australian presence’.82

While large social media services are expected to comply with an Australian regulatory scheme for legal and corporate reputational reasons, by contrast, ‘smaller social media services, typically hosted, and controlled from outside Australia, in practical terms are likely to be able to disregard Australian legislation with effective impunity’.83

Recognising the practical impact of jurisdictional issues, the Explanatory Memorandum notes that the Minister will not be able to declare smaller social media services under Tier 2 (unless they volunteer to participate under Tier 2), hence, these sites may not be subject to legally binding notices and penalties: ‘This may result in these smaller sites not responding to requests from the Commissioner to remove cyber-bullying material’.84

The Government considers that the Bill ‘amounts to a formal statement of expectations on behalf of the Australian community that these are the standards that all social media services are expected to meet’.85 The Commissioner is expected to build strong working relationships with social media services used by children in Australia, whether formally subject to the legislation or not:

The Commissioner will make informal requests to the sites not subject to Tier 2 regulation to remove cyber-bullying material - and will also highlight to them the Australian regulatory framework and the potential of the relevant social media service becoming subject to formal regulation in Australia if it becomes bigger. 86

However, industry groups raised concerns over the extraterritoriality of the above-noted provisions. AIMIA’s Digital Policy Group argued that the provisions ‘represent significant overreach with respect to the powers that are held by the Federal Circuit Court of Australia and may at best, not be actionable’, proposing that the Bill be ‘redrafted to reflect the actual limits of the jurisdiction of the Federal Circuit Court’. 87

AIMIA also argued that the proposed legislation ‘sets a standard for other governments to adopt a similar approach which leads to a conflict of laws situation, and adds uncertainty and cost to business’ and could potentially cause service providers to nominate a contact person who works at the international headquarters for that company.88

Accreditation of educational programs Paragraph 15(1)(f) provides that one of the key functions of the Commissioner is to support, conduct, accredit and evaluate educational and community awareness programs relevant to online safety for children. No further details on how an accreditation scheme might operate are provided in the Bill.

Recognising that it was unlikely that all bullying could be prevented, Western Australia’s Acting Commissioner for Children and Young People, Jenni Perkins, suggested that the next preferred outcome would be to minimise the impact of bullying behaviour and to provide children and young people with the skills to report and to cope with bullying behaviour.89 Ms Perkins argued that these outcomes would be most appropriately achieved by a stronger emphasis on preventative education and programs. Such programs could focus on:

 Prevention of bullying behaviour

 Enhancement of resilience in young people so the effects of bullying behaviours where they occur are mitigated

82. Explanatory Memorandum, op., cit., p. 27. 83. Ibid., p. 42. 84. Ibid., p. 27. 85. Ibid.

86. Ibid., p. 27. 87. AIMIA Digital Policy Group, Submission to the Senate Standing Committee on Environment and Communications, Enhancing Online Safety for Children Bill 2014, January 2015, p. 9, accessed 27 February 2015. 88. Ibid., p. 8. 89. J Perkins, Inquiry into the Enhancing Online Safety for Children Bill 2014 and the Enhancing Online Safety for Children (Consequential

Amendments) Bill 2014, Commissioner for Children and Young People, Western Australia, 20 January 2015, accessed 15 February 2015.

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 Addressing the role of 'bystanders' in bullying. 90

Many schools commission external providers to deliver programmes about online safety, however, these programmes are not required to meet standards of quality or specifically cover cyber-bullying content. 91

Research commissioned by the Department of Communications into youth awareness of cyber-bullying as a criminal offence suggests that schools are not currently providing best practice education on cyber-bullying: only 63 per cent of youth agreed that cyber-bullying could be considered an offence punishable by law, while 26 per cent understood that defamation online could be a crime.92

The Government canvassed different policy options, supporting a voluntary process for the certification of programmes about online safety that are offered in school:

In the absence of a certified approach to online safety education of parents, carers, teachers and children, Government cannot be certain that threats to Australian children, particularly in regard to cyber-bullying, are being adequately and authoritatively addressed. 93

The voluntary certification process will aim to provide quality assurance of online safety education provided in schools and enable schools to identify programmes and providers that are likely to be the most appropriate to meet the needs of students and the school community.94

A risk was identified that online safety programme providers may choose not to participate in the voluntary certification process, or that schools may not be aware of its operation. Consultation with industry and information campaigns targeted at education authorities and schools is expected to mitigate this risk. Linking a $7.5 million funding programme with the voluntary certification process is also expected to encourage providers to certify their programmes.95

An implementation risk of the voluntary certification process is that the Commissioner may receive a higher number of applications than originally estimated, making it difficult to assess applications in a timely and effective manner. The Commissioner is expected to work closely with online safety programme providers to manage stakeholder expectations. 96

Human Rights considerations The Bill engages the right to freedom of expression, the right to protection from unlawful attacks on honour and reputation, the right to privacy and the right to certain minimum guarantees in criminal proceedings.

The right to freedom of expression The right to freedom of expression is protected under the Convention on the Rights of the Child (CROC), the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of Persons with Disabilities (CRPD).

Rights relating to freedom of expression are recognised and protected by Articles 12 and 13 of the CROC. The Convention recognises the right of a child who is capable of forming his or her own views to express those views freely in all matters affecting the child (Article 12, paragraph 1). Paragraph 2 of that Article recognises the right of a child to be heard in judicial and administrative proceedings that affect the child.

The right of a child to freedom of expression is protected under Article 13, paragraph 1. However, the exercise of this right may be subject to certain restrictions (paragraph 2). The CROC limits the types of restrictions that may be imposed to such restrictions as are provided by law and are necessary either for respect of the rights or reputations of others.97

90. Ibid.

91. Explanatory Memorandum, op., cit., p. 20. 92. Ibid., p. 57. 93. Ibid., p. 57. 94. Ibid., p. 26. 95. Ibid., p. 27. 96. Ibid., p. 28. 97. Ibid., p. 9.

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The Bill’s impact on freedom of expression was raised as a concern in submissions to the Senate Inquiry into the Bill. For instance, the Institute of Public Affairs argued that the Bill has ‘the potential to present an undue and disproportionate limitation on freedom of expression online’:

… the government needs to recognise that what it is introducing is a censorship power over large social media sites. Freedom of speech is a vitally important democratic value. The government ought not to be introducing new schemes by which free speech can be limited. The likelihood that such schemes will be extended by future governments is quite high - particularly in the case of a scheme that focuses on social media, which is susceptible to regular bursts of popular “outrage”.

98

The Government recognises that several provisions of the Online Safety Bill are restrictive of freedom of expression: ‘protecting children from cyber-bullying by addressing and preventing some of the worst instances of cyber-bullying is a policy objective that is intrinsically restrictive of freedom of expression’.99 The Bill restricts the exercise of the right to freedom of expression of an end-user who wishes to exercise this right by providing cyber-bullying material. However, the Government argues that freedom is curbed in the ‘least restrictive manner that is consistent with achieving the intended policy outcome’.100 It notes that the definition of ‘cyber-bullying material’ in clause 5 of the Bill is the narrowest definition available that is consistent with the policy objectives behind the Bill (see above).101

The Explanatory Memorandum maintains that, to the extent that the Bill restricts end-users’ right to freedom of expression, the restriction is allowable under paragraph 2 of Article 13 of the CROC, and is considered necessary for respect of the rights or reputation of the child who is the target of the cyber-bullying.102 It notes that the right to freedom of expression is further protected in that decisions regarding the taking down of cyber-bullying material, which are adverse to an end-user’s interests, can be appealed to the Administrative Appeals Tribunal, and reviewed by that Tribunal on their merits.103

During the House of Representatives’ debate on the Bill, Wyatt Roy MP commented:

Freedom of speech has an intrinsic value, which is not under siege here. Protecting children against harm is our priority, and any perceived threat to freedom of speech is mitigated in two ways. First, these measures will apply only to communications directed at children; they have no impact on freedom of speech between adults. Second, the scheme applies specifically to cyberbullying—that is, content targeted at, and harmful to, an Australian child. It is not a general content regulation scheme, nor will rapid removal ambush large social media sites and unfairly disrupt their business processes, because a clear principle is that in the first instance, before a complaint can be received and considered by the Children's e-Safety Commissioner, the complainant must have reported the cyberbullying material to the social media site under its already established protocols.

104

The right to protection from unlawful attacks on honour and reputation The right to protection from unlawful attacks on honour and reputation is protected under the CROC (Article 16 paragraph 1). Children have the right to the protection of the law against such interference or attacks (paragraph 2).

Cyber-bullying material can constitute interference with a child’s privacy, family, home or correspondence or attacks on the child’s honour and reputation. ‘By providing a remedy for a child who is the target of cyber-bullying material, hence providing protection of the law against such interferences or attacks, the Online Safety Bill advances the right recognised by Article 16 of the CROC’.105

98. Institute of Public Affairs, Submission to the Senate Standing Committee on Environment and Communications, Enhancing Online Safety for Children Bill 2014, January 2015, p. 6, accessed 27 February 2015. 99. Explanatory Memorandum, op. cit., p. 9. 100. Ibid., p. 10. 101. Ibid. 102. Ibid. 103. Ibid., p. 11. 104. W Roy, ‘Second reading speech: Enhancing Online Safety for Children Bill 2014, Enhancing Online Safety for Children (Consequential

Amendments) Bill 2014’, House of Representatives, Debates, 12 February 2015, op. cit., p. 35. 105. Explanatory Memorandum, op. cit., p. 11.

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The right to privacy The right to privacy is protected under the CROC (Article 16), the ICCPR (Article 17) and the CRPD (Article 22).

Part 9 of the Online Safety Bill deals with disclosure of information that was obtained by the Commissioner as a result of the performance of a function, or the exercise of a power, conferred on the Commissioner by or under the Online Services Bill or the Broadcasting Services Act 1992 as amended by the Consequential Amendments Bill. This includes information that relates to the child who was the target of the cyber-bullying material, information that relates to the end-user who posted the material, or to other persons.106

The Bill expressly authorises only the disclosures that are permitted by Part 9. The Commissioner will be an ‘agency’ for the purposes of the Privacy Act 1988, and will be bound by that Act. A body corporate to which the Commissioner delegates functions or powers under clause 64 of the Online Safety Bill would also be bound by the Privacy Act107 (see comments regarding clause 64 by the Senate Standing Committee for the Scrutiny of Bills, above).

Clauses 77 and 78 authorise disclosure of information by the Commissioner to the Minister responsible for administration of the Online Safety Bill, and also to the Secretary of the Department and APS employees in the Department who are authorised by the Secretary, for the purpose of advising the Minister.

Clause 79 authorises the Commissioner to disclose information to a Royal Commission (within the meaning of the Royal Commissions Act 1902). Subclause 79(2) empowers the Commissioner, by writing, to impose conditions to be complied with in relation to information disclosed under this clause.

The Commissioner is authorised under clause 80 to disclose information to any authorities listed in that clause, if the Commissioner is satisfied that the information will enable or assist the authority to perform or exercise any of its functions or powers.

The Bill is intended to operate alongside state and territory laws that deal with cyber-bullying (clause 101) and is intended not to affect the performance of any state or territory functions (clause 102). Under clause 92, the Commissioner is able to refer matters to the Australian Federal Police (AFP) or state or territory law enforcement agencies. The Explanatory Memorandum states that, because of this, clause 80 is needed to ensure that the Commissioner is able to disclose sufficient information to those authorities. Clause 80 contains a provision which empowers the Commissioner, by writing, to impose conditions to be complied with in relation to disclosed information.108

Clauses 81 and 82 provide that the Commissioner is able to disclose information to a teacher or school principal, or to a parent or guardian, if satisfied that the information will assist in the resolution of a complaint under the Bill. Clauses 81 and 82 contain provisions which empower the Commissioner, by writing, to impose conditions to be complied with in relation to information disclosed under these clauses.

Clause 83 permits disclosure of information relating to the affairs of a person, so long as that person has consented to that disclosure, and clause 84 authorises the disclosure of information that is already publicly available. Clause 85 authorises the disclosure of summaries and statistics, but these are only authorised if they are summaries of, or statistics prepared from, ‘de-identified’ information. The term ‘de-identified’ is defined in clause 4 as information that is no longer about an identifiable individual, or an individual who is reasonably identifiable.

The right to certain minimum guarantees in criminal proceedings Rights that ensure certain minimum guarantees in criminal proceedings, such as the presumption of innocence, and fair trial and hearing rights, are recognised by the ICCPR (Article 14), the CROC (Article 40) and the CRPD (Article 13)

Clause 36 of the Online Safety Bill allows a civil penalty notice to be issued in relation to non-compliance with a social media service notice on a Tier 2 social media service. The Explanatory Memorandum considers whether this amounts to a ‘criminal’ penalty for the purposes of the ICCPR (a penalty may be ‘criminal’ for the purposes of the ICCPR even if it is ‘civil’ under Australian domestic law). It concludes:

106. Ibid. 107. Ibid. 108. Ibid., p. 12.

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The new civil penalty provision is directed at regulating large social media services, which in almost all instances will be corporations or other organisational bodies, rather than individuals. Accordingly, in general, the new civil penalty provisions will not engage any of the human rights listed above. 109

Best interests of the child Article 3(1) of the CROC requires that State Parties apply the principle of the best interests of the child:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 110

The ‘best interests’ principle is one of the fundamental principles of the CROC, underpinning the interpretation of all children’s rights and freedoms.111 The best interests of the child are assessed from the child’s perspective, not that of the parents or the state.112 The principle requires active measures to protect children’s rights and promote their survival, growth, and wellbeing, as well as measures to support and assist parents and those who have daily responsibility for ensuring recognition of children's rights.113

A child’s ‘best interests’ is not specifically defined in the CROC. However, it is clear that it is in a child’s best interests to enjoy the rights and freedoms set out in the CROC.114 Where actions and decisions affect an individual child, the best interests of that child must be taken into account.115

Under Article 3.1, the best interests of the child are generally a primary consideration in all actions concerning children. The Convention uses the term ‘a’ primary consideration, rather than ‘the’ primary consideration, allowing decision-makers to balance the best interests of the child against other primary considerations.116

Several submissions to the Senate Environment and Communications Legislation Committee Inquiry raised the issue of the best interests of the child. While clause 12 of the Bill requires the Commissioner to have regard to the CROC in the performance of his or her functions, it does not specifically refer to the best interests principle.

The Law Council of Australia argued that the Commissioner should ‘explicitly have regard to the principle of the best interests of the child’.117 The National Children’s and Youth Law Centre also recommended that ‘the best interests of children should be expressly identified in the Bill as the Commissioner’s paramount consideration’.118

Western Australia’s Acting Commissioner for Children and Young People, Jenni Perkins, noted that while it was clearly in the best interests of the child not to be the subject of bullying, the principle of 'best interests of the child' also includes the best interests of the child who is carrying out the bullying behaviour:

Without excusing or diminishing the impact of bullying, the effects of any response on the child or young person who is seen as the bully should be very carefully considered. Responses which emphasise prevention and education should be preferred over primarily punitive responses, giving the child an opportunity to learn from and address their behaviour in a positive manner.

Any legislation which could cause children and young people to be subject to civil or criminal penalties or sanctions must be very carefully considered, and should only be enacted if it can be demonstrated that such regulation would have a practical effect. While the removal of the bullying material is a visible effect, it is not clear that it actually

109. Ibid., p. 13. 110. Convention on the Rights of the Child, done in New York 20 November 1989, [1991] ATS 4 (entered into force for Australia 16 January 1991). 111. Australian Human Rights Commission (HRC), ‘Human Rights brief no. 1: the best interests of the child,’ HRC website, accessed 27 February 2015.

112. S Joseph, J Schultz and M Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary, second edition, 2005, p. 624. 113. Attorney-General’s Department (AGD), ‘Rights of parents and children’, Guidance sheet, AGD website, accessed 27 February 2015. 114. Australian Human Rights Commission, ‘Human Rights brief no. 1: the best interests of the child,’ op. cit. 115. Ibid. 116. Ibid. 117. Law Council of Australia, Submission to the Senate Standing Committee on Environment and Communications, Enhancing Online Safety for

Children Bill 2014, op. cit., p. 2. 118. National Children’s and Youth Law Centre and the Social Policy Research Centre, Supplementary submission to the Senate Standing Committee on Environment and Communications, Enhancing Online Safety for Children Bill 2014, accessed 25 February 2015.

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achieves the desired outcome, to address the issue of bullying behaviour by the perpetrator/s… such outcomes are far more likely to be achieved through a preventative and educative focus. 119

Aboriginal and Torres Strait Islander children and young people The Acting Chief Executive Officer of Victoria’s Commission for Children and Young People, Brenda Boland, recommended that the e-Safety Commissioner be ‘explicitly required to develop and support specific research and strategies designed to enhance the online safety of Aboriginal and Torres Strait Islander children’. 120 This would be in accordance with the Joint Select Committee on Cyber-Safety’s 2013 report Issues Surrounding Cyber-safety for Indigenous Australians.121

The Committee reported that one of the key messages it received was ‘the need for appropriate educational approaches to be developed to address the particular circumstances of Indigenous people’.122 It noted that Aboriginal and Torres Strait Islanders, with support of key government and community stakeholders, ‘are proactive in developing cyber-safety initiatives in terms that are understood and embraced by their peoples.’123

The Inquiry found that cyber-safety for Indigenous Australians involved a wide range of issues including, but not limited to, issues of cyber-bullying and racism.124 The report concluded:

The evidence taken has confirmed that there are strong protective mechanisms in Indigenous culture which can be leveraged to safeguard the vulnerable, including youth, from potential online harms. However, there are also reasons to believe that the rollout of new services into remote areas could exacerbate intercommunity conflict while diminishing community capacity to manage such developments.

125

Other provisions Statutory Review Under clause 107, within three years after its commencement, the Minister must cause a review to be conducted of the operation of the Act and the legislative rules (clause 108) and whether any amendments to the Act or the rules are required.

The review must also consider whether a delegation should be made to a body corporate under subclause 64(1), outlined above.

Subclause 107(2) requires the Minister to table the report of the review in each House of Parliament within 15 sitting days of its completion.

119. J Perkins, Inquiry into the Enhancing Online Safety for Children Bill 2014 and the Enhancing Online Safety for Children (Consequential Amendments) Bill 2014, Commissioner for Children and Young People, Western Australia, 20 January 2015, accessed 15 February 2015. 120. B Boland, Commission for Children and Young People (Victoria), Submission to Senate Standing Committee on Environment and Communications, 28 January 2015, accessed 1 March 2015. 121. Joint Select Committee on Cyber-Safety, Issues surrounding cyber-safety for Indigenous Australians, op. cit. 122. Ibid., p. 23. 123. Ibid., p. 25. 124. Ibid., p. 30. 125. Ibid., p. 25.

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