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Thursday, 17 June 2021
Page: 3176


Senator RICE (VictoriaDeputy Australian Greens Whip) (13:45): I rise today to highlight in particular the concerns that the Greens have heard from the LGBTIQ+ community about the Online Safety Bill 2021 and the related bill. As my colleagues have said, the Greens support the intent of these bills to protect the safety of people online, particularly women and children. But, as my colleagues have also said, we do not believe these bills are a well-designed suite of measures to address this serious issue. Given the rush in the development of these bills, that's probably not a surprise.

So the Greens will move amendments to address the flaws that we and many of the organisations that we've spoken to have identified. The excellent submission by the Victorian Pride Lobby to the Senate inquiry on the bills outlined their concerns about the Online Safety Bill as it stands. It has the potential to have very significant adverse effects on the lesbian, gay, bisexual, transgender, gender-diverse, intersex and queer communities. Their submission said:

The objects of the Bill are "to improve online safety for Australians" and "to promote online safety for Australians." Censorship of consensual adult material does not improve online safety for Australians. The online content scheme in Part 9 of the Bill appears to be an attempt to implement a classification-based censorship scheme, which is incongruous with the Bill's objectives and entirely unrelated to protecting Australians from online abuse.…   …   …

We applaud the work of the eSafety Commissioner in providing online safety advice and support for the LGBTIQ+ community, including being out online and dealing with image-based abuse. In this regard, it should be noted that the United States Gay and Lesbian Alliance Against Defamation is developing a Social Media Safety Index to rate social media companies on how well they protect LGBTQ people from abuse. Whilst we strongly support reforms to improve and promote online safety, on the basis of the foregoing, we recommend that Part 9 of the Bill be deleted in its entirety. The issues raised herein should be addressed through the ongoing Review of Australian Classification Regulation.

Similarly, an article in Junkee summarised a set of key concerns for the queer communities. That article said:

The trouble is whether content is "likely to cause offence to a reasonable adult".

That's pretty subjective and you can see how it favours majority groups. When asked, Communications Minister Paul Fletcher singled out fetishes like bondage, fisting and watersports as offensive. Not everyone's cup of tea, sure, but two guesses which community he has in mind.

The commissioner's broad powers and the Bill's regressive definition of "adult content" put LGBTQ rights and visibility at enormous risk of coordinated attacks. In a country prone to moral panics about anti-bullying programs and trans kids, this is hardly speculative.

Given some of the transphobic and homophobic motions that we've seen from One Nation senators and others, supported by many in this government, we share those profound concerns. The article continues:

The current eSafety commissioner has said that she won't use these powers to persecute sex workers (and, one would hope, queer people). However, it doesn't really matter what she plans to do; the point is that they don't need these powers in the first place.

It's dangerous to make laws as if they'll only ever be used by people currently in office. A future administration could appoint an anti-sex work crusader or career homophobe who would use these powers with malicious intent at any time.

From competent lawmakers, we'd expect to see safeguards, sunset clauses and built-in appeals processes. Instead, we've seen a sweeping set of powers rushed into Parliament a week after consultation closed, ignoring many of the 370 public submissions.

There's another interrelated significant suite of concerns, and that's the impact of this legislation on sex workers, particularly those who are working online. As the Victorian Pride Lobby said in their submission:

The effect of these provisions is that any sexually explicit content will be subject to unilateral removal from Australian internet hosting service providers. This unfairly and unreasonably targets legal and consensual media for arbitrary removal. If taken to its logical conclusion, the Bill will attempt to censor any online media depicting any sexual activity between consenting adults.

Similarly, the submission from Scarlet Alliance commended some aspects of the bill but said:

We have significant concerns, however, with the way the Bill frames online harm and safety, and with the way it fails to consider the impact of action taken under the Bill on sex worker safety, both online and in real life. We urge consideration of the 'chilling effect' likely to result from the intersection of the Online Content Scheme and the Basic Online Safety Expectations, for which there is already significant precedent in similar legislation (FOSTA-SESTA) in the United States.

By positioning all sexual content as potentially damaging to and giving the eSafety Commissioner power to investigate at will and issue notices as they 'think fit', the Bill fails to differentiate between actual harm and a subjective, moralistic construction of harm. The Bill does not define harm itself, nor does it create a provable threshold of harm that can be used in the Commissioner's decision-making processes. In concentrating power in a single un-elected office, it silos power and control over perceiving and acting upon harm in a way that lacks transparency or accountability to the Australian public or connection to the intersectional Australian community.

These are really serious issues. It is because of these serious issues, particularly as I've outlined here, and the really significant impacts on the LGBTIQ community and the sex worker community that my colleague Senator McKim has moved a second reading amendment calling for the bills to be withdrawn, reconsidered and redrafted.

We will also be moving other amendments to address concerns, including inserting a review process and changes that would reduce the risk of consensual sexually explicit content being removed. These include major amendments to part 9 of the bill, which is where the online content scheme and classification code are set out. These include measures that would prevent unintended consequences that would adversely affect advertising of legitimate and lawful sex services and products and sexual health programs and providers. The other significant area of concern that we have, as has been referenced in the excerpts from the submissions that I've read out that our Greens amendments are going to address, is the far-reaching powers of the eSafety Commissioner, which effectively gives them the power to act as Australia's chief censor.

I want to be really clear on the record here: the Greens support the intent of this bill. We support the intent of a bill to create online safety for Australians. It is absolutely undeniable that this is a serious issue and it needs to be addressed. But this bill, in the way it is currently drafted, has incredibly serious flaws that are going to have major unintended consequences on rafts of people, but particularly, as I've outlined today, on LGBTIQ people and on sex workers. As the Greens LGBTI spokesperson, I want to say that we hear the concerns of those communities about this bill and we share them. We do not support these bills in their current form because of these issues, and we look forward to receiving support for our very sensible amendments, which would address these hopefully unintended consequences and would enable the intent of the bill to improve online safety for Australians to be achieved without these significant adverse and unintended consequences.