BILLS DIGEST NO. 95, 2016–17              8 May 2017

Enhancing Online Safety for Children Amendment Bill 2017

Monica Biddington
Law and Bills Digest Section 

Date introduced:  9 February 2017

House:  House of Representatives

Portfolio:  Communications

Commencement: the day 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 Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at May 2017.

Purpose of the Bill

The purpose of the Enhancing Online Safety for Children Amendment Bill 2017 (the Bill) is to amend the Enhancing Online Safety for Children Act 2015 (the Act) to broaden the functions of the Children’s eSafety Commissioner to include online safety for all Australians. As part of the amendments, the name of the Act will be amended, to be known as the Enhancing Online Safety Act 2015.

Structure of the Bill

The Bill has one Schedule, presented in three parts.

Part 1 will make the main amendments to the Act and Part 2 will make consequential amendments to the Australian Communications and Media Authority Act 2005 (Cth), Broadcasting Services Act 1992 (Cth), Criminal Code Act 1995 (Cth) (Criminal Code), Freedom of Information Act 1982 (Cth) and the Telecommunications Act 1997 (Cth). Part 3 contains saving and transitional provisions.

Background

Cyberbullying amongst young people has been widely reported and was the catalyst to the establishment of the Children’s e-Safety Commissioner in 2015.[1] Efforts to prevent and deter cyberbullying need to be diverse and keep up with the changing technologies that young people use, including dark social and disappearing media such as Snapchat.[2]

The focus on children and online safety was in response to evidence that unwelcome comments and threats were increasingly common on social media, causing vulnerable young people to suffer mental health issues including depression and anxiety, and some resulting in suicide. However:

while bullying has unfortunately long been a negative part of school life and, to some extent, the workplace and other institutional settings, its migration to the online environment magnifies its reach and hence the harm that can be caused. Online bullying can happen at any hour of the day, or late at night. It can be seen by many others, particularly if done on social media, or by the victim alone. It can be experienced as an acute personal attack, and as degradation within a peer group. It can be joined in by others, again magnifying its negative consequences.[3]

In that light, age is no barrier and adults are also frequently subjected to online harassment and bullying with similar consequences to their mental and sometimes physical health. Adults may be subjected to any number of cyberbullying forms including online trolling and harassment, hacking and impersonating someone online, stalking, and derogatory comments.[4] It is possible for the subject of the offensive behaviour to be unaware of its existence for some time. This can increase the level of mental anguish when the victim does become aware of any form of cyberbullying and online harassment, particularly if the cyberbullying is the sharing of intimate images without consent. The Government is seeking to expand the functions of the eSafety Commissioner to assist a broader range of vulnerable Australians, including older Australians, victims of domestic and family violence, and people who have had intimate images shared without their consent (often referred to as ‘revenge porn’). While the Commissioner will not have the ability to receive complaints from adults about cyber-bullying material, the Government seeks to improve and promote online safety for all Australians through education initiatives.

In 2016, as part of its commitment to reducing violence against women and their children, the Council of Australian Governments agreed to continue:

[b]uilding on the progress by all jurisdictions to prevent technology-facilitated abuse… Leaders took a further step towards preventing online abuse of women by agreeing to develop principles for nationally consistent criminal offences relating to non-consensual sharing of intimate images. The significant work of the Victorian Royal Commission into Family Violence was also recognised, with Leaders agreeing to consider a number of the report recommendations requiring national agreement and cross-jurisdictional cooperation.[5]

This Bill does not introduce offences for non-consensual sharing of images but is a recognition of the Government’s commitment to assist all Australians on online safety, through education and research. More broadly than this Bill, the Government has committed to a ‘a public consultation process of a proposed civil penalties regime targeted at both perpetrators and sites which host intimate images and videos shared without consent.’[6]

In the second reading speech on the Bill, the Government highlighted its commitment to improving the digital confidence and skills of older Australians. The changes to the eSafety Commissioner’s functions complement some existing work that the Commissioner is doing with the Department of Social Services to develop a digital inclusion and online safety strategy for older Australians. The changes made in this Bill will give the Commissioner greater scope to support older Australians ‘ensuring they have the skills to participate in our modern digital economy’.[7]

National plan to combat cybercrime

One way in which cyberbullying is presently addressed is as part of the Australian Cybercrime Online Reporting Network (ACORN), a national policing initiative of the Commonwealth, state and territory governments. It is a national online system that allows the public to securely report instances of cybercrime. It also provides advice to help people recognise and avoid common types of cybercrime:

The ACORN is a key initiative under the National Plan to Combat Cybercrime, which sets out how Australian agencies are working together to make Australia a harder target for cybercriminals. The ACORN has been designed to make it easier to report cybercrime and help develop a better understanding of the cybercrime affecting Australians. By understanding the enablers of cybercrime, we can make it harder and less rewarding to commit cybercrime.[8]

ACORN manages cyberbullying reporting for adults and lists the following conduct as types of cyberbullying:

·          posting hurtful messages, images or videos online

·          repeatedly sending unwanted messages online

·          sending abusive texts and emails

·          excluding or intimidating others online

·          creating fake social networking profiles or websites that are hurtful

·          nasty online gossip and chat, and

·          any other form of digital communication which is discriminatory, intimidating, intended to cause hurt or make someone fear for their safety.[9]

Existing legal responses to cyberbullying

Online harassment can also present itself as vilification, directed at a particularly individual or group, or a person’s race, ethnicity, religious denomination or sexual orientation. In these cases, a victim of online harassment can make a complaint to the Australian Human Rights Commission.[10] Importantly, there are existing criminal offences under the Commonwealth Criminal Code that capture cyberbullying against both adults and children. Section 474.17 of the Criminal Code makes it an offence to use a carriage service (internet, social media, phone, et cetera) to menace, harass or cause offence. The maximum penalty for this offence is three years imprisonment or a fine of more than $30,000. Further, there are stalking offences in each state and territory that are applicable to online conduct, carrying significant penalties.

Committee consideration

Senate Standing Committee for the Scrutiny of Bills

It its Scrutiny Digest, the Senate Standing Committee for the Scrutiny of Bills had no comment on the Bill.[11]

The Bill has not been referred to any other Committee.

Financial implications

The Explanatory Memorandum states that the Bill will have no financial impact.[12]

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. The Government considers that the Bill is compatible.[13]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights has made no comment on the Bill in its Scrutiny Report.[14]

The amendments to the function of the Commissioner by items 18 and 19 of the Bill, together with item 27, means that a broader class of information could potentially be disclosed under subsection 80(1). As explained in the Explanatory Memorandum to the Bill:

In other words, the Commissioner will be permitted to disclose a broader class of information to any of the specified authorities if the Commissioner is satisfied that it would enable or assist the particular authority to perform or exercise any of its functions or powers.

Key issues and provisions

Schedule 1, item 4 will update and clarify the simplified outline of the Act. Existing section 3 will be amended to provide that the functions of the Commissioner include:

(a)     promoting online safety for Australians

(b)    administering a complaints system for cyber-bullying material targeted at an Australian child

(c)     coordinating activities of Commonwealth Departments, authorities and agencies relating to online safety for children and

(d)    administering the online content scheme under the Broadcasting Services Act 1992.

Items 7–10 will insert the following new definitions into section 4:

•       Australians means individuals who are ordinarily resident in Australia

•       online safety for Australians means the capacity of Australians to use social media services and electronic services in a safe manner.

The Explanatory Memorandum is clear in distinguishing the ‘soft’ functions of the Commissioner from the complaints scheme for cyber-bullying material that targets Australian children. This Bill will allow the former to apply to all Australians and includes (at Schedule 1, item 18):

•       promoting online safety for Australians (amended paragraph 15(1)(b))

•       supporting and encouraging the implementation of measures to improve online safety for Australians (amended paragraph 15(1)(c))

•       collecting, analysing, interpreting and disseminating information relating to online safety for Australians (amended paragraph 15(1)(e))

•       supporting, encouraging, conducting, accrediting and evaluating educational, promotional and community awareness programs that are relevant to online safety for Australians (amended paragraph 15(1)(f))

•       making, on behalf of the Commonwealth, grants of financial assistance in relation to online safety for Australians (amended paragraph 15(1)g))

•       supporting, encouraging, conducting and evaluating research about online safety for Australians (amended paragraph 15(1)(h))

•       publishing (whether on the internet or otherwise) reports and papers relating to online safety for Australians (amended paragraph 15(1)(i))

•       giving the Minister reports about online safety for Australians (amended paragraph 15(1)(j))

•       advising the Minister about online safety for Australians (amended paragraph 15(1)(k))

•       consulting and cooperating with other persons, organisations and governments on online safety for Australians (amended paragraph 15(1)(l)).

The Government does not intend for the complaints scheme for cyber-bullying material that targets Australian children to be expanded to cover all Australians.

Part 2 of Schedule 1 makes a number of consequential amendments, allowing for the name change from Children’s e-Safety Commissioner to eSafety Commissioner in the Australian Communications and Media Authority Act 2005, Broadcasting Services Act 1992, Criminal Code Act 1995, Freedom of Information Act 1982 and Telecommunications Act 1997.

Concluding comments

The decision to expand the functions of the eSafety Commissioner is one that broadly complements existing legislative arrangements for Australian adults to address cyberbullying, cyberhate, trolling and other malicious and offensive online behaviour. The Bill does not present a significant policy shift or raise significant legal issues.

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[1].              For further background on cyberbullying and the establishment of the Children’s e-Safety Commissioner, see G Butler, Enhancing Online Safety for Children Bill 2014, Bills digest, 78, 2014–15, Parliamentary Library, Canberra, 2 March 2015.

[2].              For a broad explanation of social networking services, see JI Grant, ‘Don’t be in the dark about “dark social”’, Office of the Children’s eSafety Commissioner website, 7 March 2017.

[3].              G Urbas, Cybercrime: legislation, cases and commentary, LexisNexis Butterworths, Sydney, 2015, p. 249.

[4].               See for an Australian example, the impact of cyberbullying on adults. Much of the research on cyberbullying is focused on children and young people but it is broadly recognised that cyberbullying can contribute to mental health issues and suicide in adults.

[5].              Council of Australian Governments (COAG), Communique, COAG Meeting, Canberra, 9 December 2016, p. 3.

[6].               P Fletcher, ‘Second reading speech: Enhancing Online Safety for Children Amendment Bill 2017’, House of Representatives, Debates, 9 February 2017, p. 470.

[7].               Ibid.

[8].              Australian Cybercrime Online Reporting Network (ACORN), ‘About the ACORN’, ACORN website.

[9].               Ibid.

[10].              Australian Human Rights Commission (AHRC), ‘Know your rights: racial discrimination and vilification’, AHRC website.

[11].              Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 2, 2017, The Senate, 15 February 2017, p. 15.

[12].              Explanatory Memorandum, Enhancing Online Safety for Children Amendment Bill 2017, p. 3.

[13].              The Statement of Compatibility with Human Rights can be found at page 4 of the Explanatory Memorandum to the Bill.

[14].               Parliamentary Joint Committee on Human Rights, Report, 1, 2017, The Senate, Canberra, 16 February 2017, p. 32.