Kerryn Phelps (Wentworth, Independent) Share this | Hansard source

I second the amendment. I'd firstly like to convey my sincere condolences to the people of New Zealand for the tragedy in Christchurch, which has been the catalyst for the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Bill 2019. The live streaming of this atrocity is abhorrent to us all. However, the proposed amendments to criminal legislation to deal with the live streaming of violent material on social media could have serious unintended consequences, as we've heard here today, and, in the interest of responsible governance, should not be rushed through the parliament. The bill was announced as a reaction to the horrific Christchurch terrorist attacks, which were streamed live across social media. There is no question in my mind about the intent of this bill.

The Law Council has said that, while steps should be taken to ensure social media is not weaponised to promote hatred and violence, proper consultation must occur to ensure fair and effective legislation. Social media companies must do more to avoid this form of violent content being uploaded and viewed, but making social media companies and their executives criminally liable for the live streaming of criminal content is a serious step which requires careful consideration.

The legislation clearly defines relevant offensive content. The problem is regarding notification. The IT industry is deeply concerned about issues around notification. There are processes already in place to act on notifications, and algorithms are currently being developed to find offensive content so that IT companies can act to remove it. Anyone can upload anything online, and the IT companies don't have to be notified that it is there. Moreover, what does 'expeditious' mean? There is no clear definition of this time line imposed on an IT company, which may not have received a notification of the abhorrent content. Considering that the executors of social media platforms who do not remove the abhorrent material expeditiously can be punished by three years imprisonment or fines equating up to 10 per cent of a platform's annual turnover, the repercussions are great. What does 'expeditiously' mean? Is it five minutes? Is it 15 minutes? Is it an hour? Is it a day? The legislation does not define the meaning of expeditious.

Despite its best intentions, laws formulated as a knee-jerk reaction to a tragic event do not necessarily equate to good legislation and can have myriad unintended consequences. One such unintended consequence is that global IT platforms will bypass Australia to avoid being exposed to this risk.

A key concern with the bill as drafted is that whistleblowers may no longer be able to deploy social media to shine a light on atrocities committed around the world, because social media companies will be required to remove that content for fear of being charged with a crime. Social media can and has been used, including by media organisations and whistleblowers to draw attention to violent atrocities occurring overseas or criminal conduct by a foreign government, such as injuring or killing its own citizens. The legislation may have a chilling effect on the potential for social media users and media organisations who use social media providers to perform this important public service function. Whistleblowers may unfortunately be prevented from being able to tell these important stories through such providers. Similarly, this may influence the social media platforms and methods that media organisations are able to use to communicate important public interest pieces. If people on social media seek to shine a light on an atrocity or criminality, this is where the bill bites, as there is no defence for social media providers who choose not to remove violent content because the provider believes the material is in the public interest. So the bill could, in effect, lead to censorship of the media, which could undermine the very potential of the fourth estate to hold governments to account.

The Law Council has called for this legislation to be referred to a parliamentary committee for review and consultation. The shadow Attorney-General also said this morning that this should happen, and this is, indeed, the intent of this amendment. We need to consider how to provide a public interest defence for those who may be captured by the proposed offences but honestly believe on reasonable grounds that they are acting in the public interest in not removing particular material from social media in order to expose criminal content that should be brought to the public attention. Consideration could be had to modelling such a public interest defence of similar defences that already exist in other legislation, such as Commonwealth whistleblowing legislation or the Public Interest Disclosures Act 1994 New South Wales, which provides protection to public officials who report public sector wrongdoing in particular circumstances.

Any government or, indeed, any major party seeking to govern should be mindful of passing rushed legislation without consulting stakeholders, including the affected industry, or considering the broader implications. It is much better to get this legislation right than to pass flawed laws that will lead to unintended consequences. This bill should be referred to committee for consideration.

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