Kimberley Kitching (Victoria, Australian Labor Party, Deputy Manager of Opposition Business in the Senate) Share this | Hansard source

Labor knows that the government has proposed an amendment to the new cyberbullying offence in the Defence Legislation Amendment (Discipline Reform) Bill 2021, set out at new section 48A. The effect of this would be that cyberbullying offences would apply when a defence member has used a social media service or relevant electronic service in a way that a reasonable person would regard in all the circumstances as threatening, intimidating, harassing or humiliating another person, but would not necessarily regard as offensive. The government says this is a response to concerns raised by the Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights.

Labor will be opposing the amendment. In terms of the substance, we are concerned that the amendment narrows and weakens the proposed cyberbullying offence. Indeed, the government's own supplementary explanatory memorandum to the amendment acknowledges as much. We understand the issue that the minister is trying to address here but we are broadly satisfied with the interpretive guidance that has been provided in response to the questions from the Parliamentary Joint Committee on Human Rights about proportionality in relation to this new offence. Labor will not be supporting the amendment because we do not think that removing the word 'offensive' will have the desired overall effect of reflecting the reality of cyberbullying—that is, that a lot of it does come down to offence, or content that is considered offensive. The amendment appears to rely on a libertarian freedom of expression or free speech argument that we believe is inconsistent with the need to maintain a strong system of military discipline, which is the objective of the overall bill. Labor may be open to retaining the words 'in all the circumstances as threatening, intimidating, harassing or humiliating', but we think it's essential to retain the word 'offensive'. Otherwise, this risks watering down the offence.

In terms of process and consultation, we are also disappointed that the government has tried to ram this amendment through at the eleventh hour. This amendment was known about for some time, but the government provided us with it and the supplementary explanatory memorandum only yesterday, potentially only an hour or so before the bill could have been debated. This is not simply a minor or technical amendment, so this was not enough time to consider properly the proposed change.