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Tuesday, 3 March 2015
Page: 1033


Senator RUSTON (South AustraliaDeputy Government Whip in the Senate) (18:28): I, too, rise tonight to talk on the Enhancing Online Safety for Children Bill 2014 and Enhancing Online Safety for Children (Consequential Amendments) Bill 2014. It is really pleasing to be standing in this place and to hear Senator Ludlam acknowledge in his contribution that this is an issue that is above politics. I think that is extremely important. These bills were referred to committee—on that I chair. We received support from all sectors who submitted information in relation to this particular legislation. They came back to us with suggestions that were reasonably unanimous. We have been able to be reasonably quick in returning this piece of legislation and the report back to this chamber for consideration tonight.

I will just quickly touch on the consequential amendment bill, which was necessitated by a number of things, particularly in relation to the commissioner. Other bills needed to be amended to enable the commissioner to have the power to gather the kind of information that they would need in order to administer their role. Largely, the consequential amendments bill does little more than administratively tidy up details in other acts to make sure that the commissioner has the powers that they need to be able to fulfil the role that the substantive bill is requiring them to do.

The substantive bill is a very important bill. It is acknowledged by Senator Cameron and Senator Ludlam that this is above politics and is extremely important. I suppose it is stating the bleeding obvious to say that children these days live a very different world than what we lived in when we grew up. They are so much more technologically savvy. They interact with each other on an almost permanent and constant basis with online activities, whether it is playing games or talking on phones or just doing Snapchat or a whole heap of things that did not even exist when we were at school. Whilst this gives children an amazing opportunity to be able to be far more advanced in their ability to research and gain information about things, it does present us with an extraordinary challenge into the future, as we have quite clearly seen through the information we have received on this bill.

The government made a commitment coming into the election coming into the election in 2013 that it would address this particular issue. I would also like to acknowledge the extraordinary amount of work that was done in this place. Senator Bilyk in particular, who is in the chamber at the moment, did an extraordinary amount of work on her committee, to which Senator Ludlam has referred.

Subsequent to the very detailed findings—and the huge amount of research that the committee undertook and the report that was subsequently brought down to which Senator Ludlam has constantly referred—we all have to acknowledge this is an extraordinarily dynamic space. It is a very fast changing space. A matter of minutes, almost, in this space means that things are likely to change. When we came into government we made the decision we were going to do something substantial about the issue of the potential harm to our young children because of online activities, and we certainly did use the report that Senator Bilyk and her team had spent many months putting together. In using that, we then decided it was appropriate to go out and do additional and quite extensive research and consultation. The recommendations that we have come back with after doing that consultation are, broadly speaking, three. One is the establishment of an online e-Safety Commissioner and the development of an effective complaints system, which we believe required legislation to back it so that we could ensure the quick and effective removal of harmful information from social media sites. Another recommendation was to examine the existing Commonwealth legislation to determine whether we actually needed a new, simpler, cybersafety bullying offence to be put in place.

The first report that was undertaken was to deal with the prevalence of cyberbullying. The second report addressed the question of how much awareness children actually have of the current laws that govern cyberbullying. The third report commissioned by the government was a survey on schools to find out how schools were dealing with this issue.

In January 2014, the Department of Communications released a public discussion paper. Over 80 submissions were received, from a huge range of stakeholders—including, local community organisations, industry, schools, government bodies, legal bodies, academics and individuals. The feedback in that process has enabled the government to refine and develop this particular piece of legislation so that it really does reflect the wider interests and concerns of the community.

One of the things that came out very clearly in that research was that there was definitely a preference for measures to be restorative and consultative and to use counselling as a means to deal with this issue. As Senator Ludlam rightly pointed out, 'cyberbullying' is just an adjective in front of another word—bullying. The word 'bullying' is obviously the most important thing that we are dealing with here. It is just that we are dealing with a different set of circumstances and a different set of mechanisms and a different set of instruments by which this bullying is taking place. So in the first instance we need to accept that the issue of bullying is the primary focus of what we are doing. In many instances of real-life bullying, it was found that dealing head-on with the issue with the bully—through counselling and working out how to deal with that person and bringing them through the process—is a better way to deal with it.

One thing we need to remember here is that we are dealing with children, and children's processes and reasoning are nowhere near as developed as an adult's. We found, even through our justice system, that it is often better to deal with juveniles—particularly, in some instances, quite young juveniles—in a much more consultative way and counselling way than one where we come down with punitive measures.

In addition, the favoured outcome, in terms of being able to deliver this particular issue in the online environment—we are not talking about just bullying but specifically the online environment for bullying—was the creation of an e-Safety Commissioner. The most important thing they wanted was to have the e-Safety Commissioner have the capacity to quickly respond to any information brought to their attention that is found to be considered cyberbullying, so that they can rapidly take it down. The role of commissioner was very clearly intended to be online, with the skills and the like on the basis of an online environment. The message we got from the community was absolutely loud and clear: the community wanted the government to act in this space and to help keep our Australian kids safer online. The policy to enhance online safety for children is an election commitment and this particular suite of bills is in response to that.

In the evidence received through this process, a number of issues came out quite clearly as being required. Firstly, that to be able to articulate and demonstrate the harm caused by cyberbullying actually required legislation. Obviously, if it had been found that the harm required some other means of dealing with it, then it would be pointless and senseless to come up with another piece of legislation. However, the information we got from the people who made submissions to this particular inquiry undertaken by the Senate Environment and Communications Legislation Committee and also through the research that the department and agencies undertook before this bill was formulated very clearly articulated that there is harm caused by cyberbullying and that it was significant enough for us to warrant additional legislation.

It is quite scary to read the statistics of what was found through this research. The best estimate of prevalence of cyberbullying over a 12-month period is about 20 per cent of Australians, aged between eight and 17, with some studies putting that figure as low as six and others as high as 40. So we are talking about a very substantial component of young people—20 per cent of young people between the age of eight and 17—who are being bullied. This pretty much reflects other studies that have occurred in the international space. ACMA actually found that 21 per cent of kids, aged between 14 and 15, and 16 per cent of 16- and 17-year-olds had reported cyberbullying at some time during that period. Quite unsurprisingly, the research found that the highest incidence of cyberbullying occurred on social media. But, most alarmingly, it also found that the prevalence of cyberbullying had rapidly increased since the behaviour first became evident. So it is quite significant and if you extrapolate those figures from percentages into real numbers it becomes quite terrifying. It would mean that the estimated number of children or young people who were victims of cyberbullying in 2013 is about 463,000, and around 365,000 of those kids were in the 10- to 15-year-old age group. It is a very significant problem and I think anybody who has children would understand that this is a real issue. We probably took it for granted when we were kids that if you said something rude to somebody it was immediately forgotten; it was not recorded for all time on somebody's iPhone or iPad to be used at a later date.

The proposal in this legislation is that the e-safety commissioner is created as an independent statutory officer within ACMA. The key function of the commissioner will be to administer the complaints system for cyberbullying material that is targeted at an Australian child. The commissioner will also be tasked with promoting and helping to improve online safety for children, to coordinate the government's activities, to accredit children's online safety awareness programs, to make financial grants for online safety and to formulate guidelines for facilitating the resolution of cyberbullying incidents.

Senator Ludlam made comments about the need for an education program as this particular issue becomes part of our life, as are the internet and social media. In response, I would say that an education program needs to be implemented to make sure that our children have got the necessary tools and skills to be able to cope with these things and to be able to manage them. A number of roles that have been proposed for the e-safety commissioner in this particular bill target areas about providing the information and being able to develop and work with the community, schools, children and parents to make sure that they have the necessary skills. It was for this reason that it is proposed that the qualifications of the commissioner be set in legislation. We see just how terribly important it is that the e-safety commissioner has the skills that are going to be needed to deliver a really good outcome. I think the right skills will enable some tremendously good outcomes.

First and foremost, the e-safety commissioner needs to have a very deep and good understanding of the internet and how it is used and, obviously, the use of social media in that space. All of us in here who are a bit older—some of the younger staffers in here probably understand way better than the rest of us oldies as senators—do not really understand very well how the internet and social media work. I see Senator Cameron smiling over there—maybe you can show me how to do it later, Senator Cameron!

The e-safety commissioner certainly needs to have a very good understanding of how this particular piece of technology works. They also need to have really strong credibility with the social media service. Obviously, they will constantly have to interact with various social media, so the commissioner will need to have the necessary integrity and credibility to be able to work with that particular sector.

Understanding child welfare would obviously be extremely desirable, but in the context of making sure that you end up with the very best person we need to be very careful that we do not become too prescriptive about exactly what this particular person has to do, down to so many different qualifications, because we might find out that no such person exists. However, as I said, the qualifications of the commissioner have been clearly identified as one of the very significant things that need to be dealt with in order to ensure that this particular role provides the outcome we are seeking. Similarly, the decision about locating the commissioner within ACMA—the communications media regulator—was for the reasons that we stated above about what the qualifications needed to be. It is proposed that the commissioner would reside within the media's regulatory body for very similar reasons. There were some people who thought that the national children's rights commissioner or the Human Rights Commission should have taken on the role, but this legislation proposes that it be located with ACMA because it is a communications matter and it is substantially about regulation. It was believed that ACMA would be well suited to support the commission, with significant synergies in respect of existing functions that already occur within ACMA, and the online content scheme which has a strong focus on child sexual abuse material. So there was a level of similarity there.

The other thing this legislation seeks to do is to define what cyberbullying actually is and how one goes about making a complaint. Any Australian child can make a complaint to the commissioner if he or she believes that they are the target of cyberbullying material. The complaint can also be made by the child's parent, a guardian or any other person whom the child authorises to make a complaint on their behalf. The complaint can be made in relation to material provided on a social media site or by other electronic communications. It could be an email, it could be a text message, it could be Snapchat or it could be online gaming. Material will be considered to be cyberbullying if it is intended or is likely to have the effect of seriously threatening, intimidating, harassing or humiliating an Australian child. It provides a very broad scope of what cyberbullying is, and there really is nothing whatsoever to stop any child who believes that they are a victim of this behaviour from being able to take the matter up with the commissioner.

There will be a two-tiered system for the removal of cyberbullying material, depending on the type of social media outlet on which it is found, and the larger the size of the media, the harder regulation will be that applies to it. Tier 1 will be on more of a cooperative basis, for example, trying to explain to the social media outlet that material is probably not appropriate and taking a much more soft approach, because it is probably considered in this particular space that there is not a great deal of intent—probably something that has been misused. In contrast, tier 2 services that fail to remove cyberbullying material within 48 hours of being given notice by the commissioner will actually face a penalty. A specific social media service may be declared in a legislative instrument to be a tier 2 service, particularly if it is a large social media service, or a provider can choose to declare themselves as a tier 2 social media provider.

The two-tier system provides a light touch scheme in circumstances where social media services have an effective complaints mechanism already in place, but it enables the government to require bullying material to be removed in circumstances where the social media does not have an effective complaints system. The commissioner has powers to issue notices to persons who post cyberbullying material targeted at an Australian child.

In summary, this suite of legislation, particularly the substantive bill, has resulted from an overwhelming indication from the Australian community that they wanted something done about protecting Australian children from cyberbullying. It is for that reason that I commend both bills to the Senate.