Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

I table a supplementary explanatory memorandum relating to the government amendment (1) to be moved to the Defence Legislation Amendment (Discipline Reform) Bill 2021. I move government amendment on sheet ZA126:

(1) Schedule 3, item 2, page 48 (line 2), omit "as offensive or", substitute "in all the circumstances".

The purpose of this amendment is to insert the term 'in all the circumstances' and to remove the word 'offensive' from the new cyberbullying offence set out in clause 2 of schedule 3 of the bill. A cyberbullying offence will 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.

The Human Rights Committee has suggested in its report on 20 October that the cyberbullying offence be adjusted by either removing the offensive provision or limiting application of the offence to situations where there is a service connection and the need to maintain military discipline. The Scrutiny of Bills Committee also raised concern over the appropriateness of what a reasonable person would regard as the offensive use of a social media service or an electronic service. In moving this amendment, the government has listened to the concerns raised by these committees, and in response has proposed this amendment to the cyberbullying offence to omit 'as offensive or' and to substitute 'in all the circumstances'.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I wish to place on the record the Greens' opposition to this amendment.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

I would like to put our opposition to this amendment on record as well, please.

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

Deborah O'Neill (NSW, Australian Labor Party) Share this | Link to this | Hansard source

The question is that the amendment be agreed to.

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

The 2017 review directed by the Chief of the Defence Force found that aspects of the current system were overly complex and difficult to use and that summary discipline matters were taking too long to resolve. What were the typical summary discipline matters that were taking too long to resolve?

Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

I can advise that the average time taken for such an investigation was 86 days. That, I'm advised, has been reduced to 56 days. In contrast, the time for a discipline officer inquiry is two to three days.

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

Do you have a list of what the typical summary discipline matters were?

Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

I don't have that at the chair with me, but I will see if I can obtain some information for you.

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

On the amendment, why was the interpretive guidance that was provided in response to the questions from the Parliamentary Joint Committee on Human Rights about proportionality in relation to this offence not sufficient?

Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

As I understand it, both of the committees responded and said that it was not sufficient—both the scrutiny of bills committee and the human rights committee report.

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

The minister's initial response to the human rights committee was found to be not sufficient?

Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

Yes, that's correct, as I understand it.

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

Didn't this support the original form of the offence that was effectively refuting any subsequent amendment? Perhaps I should explain that better. The support of the original form of the offence—was that effectively refuting any subsequent amendment?

Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

I'm not sure that I understand your question, but I'll seek some advice from officials as to whether they have anything for me in relation to that.

Can I say in relation to the offence categories—your previous question—the ones that I have been advised are relevant are: absent from duty without leave, insubordinate conduct, disobeying a lawful command, failing to comply with a general order, assaults, weapons discharge and prejudicial conduct.

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

In the minister's initial response to the human rights committee, did he not support the original form of the offence, effectively refuting any subsequent amendment? Did he not assert that the original provision was suitable, necessary and adequate in its balance?

Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

I'm not aware of the details of the minister's original response but I think what came back to the chamber today, based on the advice of both the scrutiny of bills committee and the human rights committee, was in accordance with the positions that both those committees took.

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

In terms of ADF members who are subject to defence discipline and the amendment, is training given to members of the ADF? What kind of training is given? Do most ADF personnel find it to be adequate?

Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

I understand that the training is part of initial recruit training. There is also the establishment, in more recent times, of a new-joiners guide and there is a requirement that it must be completed by all members.

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

In terms of ADF personnel and the strengthening of the cyberbullying offence, is that consistent with the new legislation that has been announced by the Prime Minister in relation to online trolling?

Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

Senator, I think the points I enunciated in my earlier comments on the amendment itself reflect a consistency between the initiative announced by the Prime Minister and colleagues on these matters. Certainly if there were more work to be done, I'm sure the minister would look at that with keen interest.

Deborah O'Neill (NSW, Australian Labor Party) Share this | Link to this | Hansard source

It being 6.20 pm, the time allotted for the debate on the bills has expired. In accordance with the resolution agreed to earlier today, I will now put the question before the chair and then put questions on the remaining stages of this bill and then the electoral bill. The question now is that the bill stand as printed.