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Wednesday, 3 December 2014
Page: 14037


Mr FLETCHER (BradfieldParliamentary Secretary to the Minister for Communications) (10:18): I move:

That this bill be now read a second time.

The Enhancing Online Safety for Children Bill contains a package of important measures to implement the government's election commitment to enhance online safety for children.

It creates a new statutory office, the Children's e-Safety Commissioner, and provides for the commissioner to administer a complaints scheme in relation to harmful cyberbullying material targeted at an Australian child.

The measures in this bill follow extensive consultation carried out by the coalition, both in opposition and more recently in government.

In particular, this bill implements measures which were promised in the Coalition's policy to enhance online safety for childrenat the 2013 election:

Establishment of a Children's e-Safety Commissioner to take a national leadership role in online safety for children;

Implementing an effective complaints system, backed by legislation, to get material targeted at and harmful to an Australian child, down quickly from large social media sites; and

Improving support for schools through a stronger online safety component within the National Safe Schools Framework, funding $7.5 million for schools to access online safety programs and the certification of online safety programs.

Earlier this year, the government released a public discussion paper seeking feedback on our proposed measures.

We received over 80 submissions from a range of stakeholders including community organisations, industry, education bodies, government bodies, legal bodies, academics and individuals.

There was a strong response, with many organisations supporting the proposal to establish a Children's e-Safety Commissioner and the rapid-takedown system.

The government also commissioned research from a consortium of universities led by the University of New South Wales Social Policy Research Centre.

This very much confirmed the messages we have been hearing from the community about the prevalence and impact of cyberbullying.

The research found that the best estimate of the prevalence of cyberbullying over a 12-month period is 20 per cent of Australians aged eight to 17, with some studies putting that figure as low as six per cent and others as high as 40 per cent.

This is within the range of estimates of other international studies, and is consistent with previous work done by the Australian Communications and Media Authority, which found that 21 per cent of 14- to 15-year-olds and 16 per cent of 16- to 17-year-olds had reported being cyberbullied.

The research found that most incidents of cyberbullying occurred on social media—and that the prevalence of cyberbullying has 'rapidly increased' since it first emerged as a behaviour.

Following the research findings and public consultation process, the government has continued to engage with key stakeholders, including each of the members of the government's Online Safety Consultative Working Group.

This group includes the National Children's Commissioner, various industry groups, large social media services (including Facebook, Google and Twitter), child safety advocates and law enforcement officials.

The legislation introduced today implements the government's election commitment to enhance the online safety of children through a number of measures.

Establishment of the C hildren ' s e-Safety Commissioner

The bill will establish the Children's e-Safety Commissioner as an independent statutory office within the Australian Communications and Media Authority. The commissioner will take a national leadership role in online safety for children.

A key function of the commissioner is to administer a complaints system for cyberbullying material targeted at an Australian child, which I will describe later in this speech.

Other functions of the commissioner will include promoting online safety for children, coordinating relevant activities of Commonwealth departments, authorities and agencies in relation to online safety for children, and accrediting and evaluating online safety educational programs.

The relevance of accreditation is that the government is allocating $7.5 million for schools to purchase online safety programs—and this funding can be spent on any program accredited by the Children's e-Safety Commissioner.

The commissioner will also take on responsibility for administering the current Online Content Scheme presently contained in schedules 5 and 7 of the Broadcasting Services Act 1992.

However, it is important to understand that this represents the commissioner taking responsibility for the administration of this existing and longstanding scheme. This bill does not make any changes to the Online Content Scheme.

It is quite separate from the new complaints system established by this bill.

The logic for giving the commissioner responsibility for both the existing Online Content Scheme, and the new complaints system for harmful cyber-bullying material targeted at an Australian child, is that there are likely to be operational efficiencies and synergies in doing so.

Two-tiered rapid removal scheme

The bill sets out a two-tiered scheme for the rapid removal from large social media services of cyber-bullying material targeted at an Australian child. Social media services participating under tier 1 will do so on a cooperative basis—that is, the service will apply to participate and if its application is accepted it will be included within tier 1.

Following investigation of a complaint, the commissioner may request that the tier 1 social media service remove the cyber-bullying material, but there is no legal obligation on the social media service to comply.

The commissioner will have the power to revoke tier 1 status if the social media service repeatedly fails to remove cyber-bullying material following requests from the commissioner over a period of 12 months, and may make a recommendation to the minister that the service be declared a tier 2 social media service.

A service may also be declared tier 2 at its own request.

Those declared to be tier 2 social media services will be subject to legally binding notices or face the risk of civil penalties for non-compliance.

The two-tier scheme in the bill allows for a light touch regulatory scheme in circumstances where the social media service has an effective complaints system and it is working well; but it enables the government to require that cyber-bullying material targeted at an Australian child be removed in circumstances where the social media service does not have an effective and well resourced complaints system.

The commissioner will maintain registers of tier 1 and tier 2 social media services. The commissioner will also be able to publish statements about non-compliant social media services in respect of 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.

End-user notices

The commissioner will also be given the power to issue an end-user notice to a person who posts cyber-bullying material targeted at an Australian child.

The government has drawn on a number of models in developing this mechanism. One is the process set out in the New Zealand Harmful Digital Communications Bill.

Another is the experience of the National Children's and Youth Law Centre based at the University of New South Wales. They have found that in many cases a formal written request to cease cyber-bullying behaviour, issued by the centre, resolves the issue.

An end-user notice may require the recipient of the notice to take all reasonable steps to remove the material, refrain from posting further material targeted at the child or apologise for posting the material.

The next steps available to the commissioner, if the recipient of the notice fails to respond, will include going to court to seek an injunction, or referring the matter to police.

The bill will not include a power for the commissioner to fine end-users who fail to respond to a notice (many of whom could be children), because the government is wary of imposing fines on children in this area.

The government anticipates that the commissioner will enter into arrangements with the police and educational bodies setting out the circumstances in which matters would be dealt with by those parties.

Key Definitions

Cyber-bullying material targeted at an Australian child

The definition of 'cyber-bullying material targeted at an Australian child' in clause 5 of the bill has been developed after careful consideration of a number of sources.

These have included provisions in other Australian legislation, for example in relation to workplace bullying; the New Zealand Harmful Digital Communications Bill which refers to 'serious emotional distress'; academic research on the normative definitions of cyber-bullying; the terms of use of a number of the large social media services; and the cyber-bullying policies of state government agencies such as the New South Wales Department of Education.

There is an important balance to be struck here. On the one hand we seek to capture the full breadth of cyber-bullying material. On the other hand we do not want a regulatory scheme which is excessive or heavy handed and which regulates material that does not need to be regulated.

Striking this balance is particularly important given the power conferred on the commissioner by the bill—to have material removed at very short notice if the commissioner concludes that it is cyber-bullying material targeted at an Australian child.

In other words, it is important that we do not set the bar too low—but equally it is important that we do not set the bar too high.

Three key features will affect how the definition is applied.

First, material must be likely to have the effect of seriously threatening, intimidating, harassing or humiliating a particular Australian child. The use of the word 'seriously' in the bill is intended to guide the commissioner, and the courts, so that material which is merely minor, trivial or frivolous in nature is not regarded as cyber-bullying.

Second, the definition includes the capacity for the legislative rules to include other conditions if it becomes apparent during the course of administering the legislation that further conditions are necessary.

Third, the definition will be applied in the commissioner's exercise of discretionary powers to issue notices. In the exercise of these powers, it is expected that the commissioner will exercise judgement and common sense, and will act consistently with best practice guidelines and statements issued by the commissioner. The legislation gives the commissioner the power to develop and issue such guidelines.

The government is conscious that when children—particularly teenagers—communicate online, they may use swear words, or describe a person in terms that appear derogatory, but it may well be that this is simply the normal interaction between friends and acquaintances. Any parent of teenagers will understand this point immediately.

Ultimately it will be a judgement for the commissioner, and there will be many indicators of seriousness in the broader context of the events occurring that may assist the commissioner to apply the definition, such as the intensity of the language used, the material being posted repeatedly and whether or not the recipient or target of the material is on friendly terms with the person posting the material.

Social media service

For the purposes of the bill, a social media service is an electronic service that satisfies the following conditions:

the sole or primary purpose of the service is to enable online social interaction between two or more end-users;

the service allows end-users to link to, or interact with, some or all of the other end-users; and

the service allows end-users to post material to the service.

For the purposes of this definition, online social interaction includes the sharing of photos, videos or other material for social purposes. Social interaction does not include business interactions.

The definition of social media service allows legislative rules to include or exempt specified services. The constant innovation in social media services makes these powers necessary to deal with new kinds of services which may emerge in the future.

The commissioner's formal legal powers to issue a social media service notice will apply only to a 'large social media service'—or another service that has voluntarily consented to be subject to the scheme.

The powers will not apply to small offshore-based social media services. That is because seeking to make such services subject to Australian legal jurisdiction is unlikely to succeed if those services have no nexus with Australia.

However, the commissioner will be expected to make (and maintain) contact with new and emerging social media services accessible to Australian children, wherever they are based around the world, to let them know that if they became large, they will become subject to the Australian legislation, and to seek to establish a relationship under which informal requests to remove cyber-bullying material targeted at an Australian child can be made.

Basic o nline safety requirements

The legislation will state the parliament's expectation that all social media services should comply with certain basic online safety requirements, to have:

terms of use that prohibit the posting of cyber-bullying material;

a complaints scheme under which end-users of the service can seek to have material that breaches the service's terms of use removed; and

a contact person where the commissioner can refer complaints that users consider have not been adequately dealt with.

As part of establishing relationships with social media services accessible to Australian children, wherever they may be based around the world, the commissioner will be expected to communicate the expectations set out in the bill of the basic online safety requirements.

Enforcement provisions

The bill contains enforcement provisions. If a person fails to comply with a requirement under an end-user notice, the commissioner will be able to issue a formal warning.

If the provider of a social media service fails to comply with a social media service notice, it will be liable to pay a penalty of 100 penalty units—for each day in which the service fails to respond.

The commissioner will additionally be able to accept an enforceable undertaking from such a provider.

In the case of either a requirement under an end-user notice or a requirement under a social media service notice, the commissioner will be able to go to court to obtain an injunction to ensure compliance with the notice.

In each case, enforcement is governed by the standard provisions that are contained in the Regulatory Powers (Standard Provisions) Act 2014.

Conclusion

The measures in this bill implement key aspects of the government's election commitment to enhance online safety for Australian children.

The internet—and social media—offers a forum for human interaction which in the main is of great social benefit. But sometimes human interactions go wrong—offline or online.

When that happens, the internet—and social media in particular—can make bullying behaviours more dangerous to children who are the victim of those behaviours.

The measures in this bill will bring a better and more rapid response to these dangers—and help keep Australian children safer online.

Debate adjourned.