Topics: Digital duty of care, travel rorts
Senator Henderson: Well, good afternoon, everyone. Labor has a very dangerous and undemocratic agenda to shut down free speech, we know that because the Prime Minister gave the game away in New York when he talked about using the digital duty of care, the next stage, to combat misinformation and disinformation and polarisation, particularly on the extreme left and extreme right. Now, while the minister’s unfettered powers to prohibit any type of online harm have been removed from this bill, there are deeply concerning aspects to this bill, including the fact that the eSafety Commissioner has been given powers to make any sort of guidelines without safeguards. And I’ve just sent out the media release, there are a range of other issues we’re concerned about. The codes and standards, which were essential, frankly, to setting out the framework to keep Australians safe online, were removed in the exposure draft.
They’ve now been reinstated but there’s now this very convoluted and conflicting set of obligations in the Online Safety Act as proposed. There are far-reaching exclusions, which is extraordinary. They’re vague and they’re uncertain, including that material which is in the public interest is excluded. Now, what does that mean? That could mean any sort of material. And with the eSafety Commissioner having powers to make guidelines, what is she going to do to narrow down what is allowed and is not allowed online?
And of course, the fake sock puppet powers are still there, which allow the eSafety Commissioner and designated researchers to investigate and to crawl all websites, all online services, in a way that has no transparency and is also very secret. So we have a range of very serious concerns. We think this is a dangerous step in the wrong direction, and this bill cannot be supported.
Reporter: Senator, today Anika Wells said that you had reached out to her office that you know there may be ongoing conversations with the Coalition. Up until today, it seemed very clear that the Coalition was going to have no part in this bill, have the changes today opened the door for negotiations with the Coalition?
Senator Henderson: No, because the bill is still incredibly defective. In fact, in some respects, it’s worse. What does material in the public interest mean? That’s exempt from the bill. Now, there’s another issue that I’ve raised, and while the bill recognises that pornography is harmful to children, there’s an exemption in the bill relating to classified films and publications, including pornography. So there’s these incredible conflicting provisions. It is a complete dog’s breakfast. I don’t even know what many of these definitions mean, and as I say, in some respects, I think this bill is worse than the exposure draft.
Reporter: So just to be clear, at this point, there is no world in which the Coalition can support this bill? You don’t think it can be salvaged?
Senator Henderson: I don’t think it can be salvaged. I think this bill has to be scrapped, and the government has to go back to the drawing board. Now we want to see greater measures taken to keep children, in particular, and Australians safer online. We want to hold big tech to account. We’ve raised a number of really important issues, including access to parental safety tools, algorithmic transparency. Now they’re not in the bill, and there’s also this wide-ranging ministerial discretion to make rules in relation to user empowerment tools. Again, that’s been put in the hands of the minister, so she could set rules in relation to a default algorithm which exclude a wider range of other content which is banned, or which is not within the default algorithm. And of course the fact that she’s given herself 12 months for this law to come into effect as she’s proposing, shows that they are scrambling. They are scrambling with a deeply defective set of laws, which all Australians should be very concerned about.
Reporter: Can you run us through your concerns about the sock puppets, though, Senator? Because you said there’s no transparency. Part of the regulation actually say that the eSafety Commission has to provide a report every year to report annually on the use of sock puppets. So there is that level of transparency on the use of sock puppets. Also says that there are restrictions on what sort of content those accounts could actually post. Is saying that they’re only allowed to post something along the lines of they’re only allowed to post content that would essentially keep the account active. So it’s not going to be swarms of, you know, bots sharing propaganda. What are your concerns actually about these sock puppets? Because those are the kind of the main issues that have been raised by parents on that particular issue.
Senator Henderson: Well, there are still sweeping powers in relation to creating fake accounts to investigate any sort of online service. So that is deeply concerning.
Reporter: Why is that concerning, though? Like researchers, there are legitimate research users for that sort of thing to find that if, for instance, you know, accounts are showing certain types of information or content to, you know, a 16-year-old boy or a 15-year-old girl, like there are legitimate research purposes.
Senator Henderson: Well, that’s not what the bill says.
Reporter: It does though.
Senator Henderson: The bill does not confine eSafety, this particular power, to the eSafety Commissioner’s enforcement obligations, it is much more wide-ranging than that. In fact, these sock puppet rules and proposals relate to any online service. They are fake anonymous accounts, which are able to be created by chosen researchers as well as the regulator.
Reporter: But who would you be concerned will be using those and for what purpose?
Senator Henderson: I am concerned about the freedom of Australians, about free speech. I am concerned about the insidious way in which these powers could be used.
Reporter: But how? Could you expand on how that would be used? What’s insidious about a researcher creating an account to see what sort of content is being shown to Australians of certain ages?
Senator Henderson: Because these are fake accounts, because they are crawling the internet, and because there is no limitation on accessing the data of any online service. And I’ll pick up your point on reporting to parliament. What’s the point of reporting to parliament after, you know, that all of these activities have been undertaken? So I don’t buy that. That is not sufficient transparency. We did put forward a very important amendment to the Online Safety Act in relation to algorithmic transparency, which has of course been ignored by the minister. And again, I say, in many respects, this bill is more concerning than the exposure draft. I mean, how can anyone say we are concerned about online harms, but don’t worry because any material in the public interest is exempt. Well, I would say that anything that supports free speech is in the public interest, and so you know, is anything along those lines going to be allowed without any sort of prohibitions at all? I mean, it is such a mess because we had a system before; we had the Online Safety Act mandatory codes and standards, which set out very clear obligations on the digital platforms, including in relation to detecting, removing, and prohibiting child sexual abuse material, terrorism material. The fact that these were removed in the exposure draft illustrates very clearly that the minister does not know what she’s doing, and the fact that there’s been such broad exemptions with unlimited powers for the eSafety Commissioner to make any sort of guidelines should worry every Australian.
Reporter: Senator, can I just pick you up on this exemption for the public interest? Because it sounds like what you’re saying is you’re worried that free speech will be curtailed because the volume of content designated public interest is too broad. Isn’t it entirely the opposite that this provision is actually about saying, under the serious harms guidance, that if there can be a case made for the public interest, then it should be allowed to be online. Isn’t that the opposite of limiting free speech?
Senator Henderson: Clare, online safety is all about protecting Australians from serious harms. So, when material is prohibited under the current legislative regime, there is very clear guidelines as to what’s prohibited. Now there is this exclusion about material in the public interest. What does that even mean?
Reporter: But isn’t that what the Coalition was arguing for? We had weeks of the Coalition saying that this was going to be political censorship, that there could be material that was ostensibly seriously harmful, but therefore a legitimate reason, there’s now space in the bill for that to exist. Are you saying you actually want it to be more prescriptive and more restrictive of the context?
Senator Henderson: No, what I’m saying is that this is nonsensical. It’s as nonsensical as saying material which is hostile to women and gender equality should be prohibited.
Reporter: Just to be clear, it’s not saying it should be prohibited. It’s saying it shouldn’t be shown to children.
Senator Henderson: Yes, but of course, when you have a provision like that, again, I would say, what does that even mean? And so, what does it mean to have material which is in the public interest exempted? I mean, I can’t answer that question because that could mean anything. So we’ve moved from a regime…
Reporter: They’re protecting material, though. So isn’t the whole point of these carveouts that it actually allows further to be a much greater volume of the kinds of material that a lot of your colleagues are scared is going to be removed?
Senator Henderson: One of the issues that we’ve been concerned about is that there are dangerously vague definitions in the exposure draft, and as I say, there are even worse definitions in some respects in the bill. Now, who decides what’s in the public interest? The eSafety Commissioner. I mean, does that mean that anything is in the public interest?
Reporter: Isn’t that what you want if she does decide that?
Senator Henderson: I want an Online Safety Act which gives Australians certainty, which protects children and Australians from serious harms. But what we have here, Clare, is a dog’s breakfast. I mean, have a look at the exemptions. The fact that classified material, which includes pornography, is an exempt category just shows to me that the minister doesn’t know what she’s doing.
Reporter: But the exemptions also are for things like for artistic educational purposes necessary for protecting or promoting public health and safety. They’re not carte blanche exemptions.
Senator Henderson: The exemptions are very wide, and I think it’s important that the news media has been exempt. But as I say, a lot of these exemptions are vague and uncertain. So many parts of this bill are vague and uncertain, and Australians deserve clarity. But what we do know, and what I’m concerned about, when the eSafety Commissioner is asked, well, what is in the public interest? She’ll make a determination. She may well use her guidelines to dramatically narrow and define what is in the public interest. That is not clear. So again, there’s this unfettered right for her to make guidelines, which can either impose self-censorship, can extend to any sort of online platform, and can impose onerous obligations on all businesses which run a website. And now, of course, we have these very onerous obligations on small businesses, which are going to be required to do risk assessments every year. Businesses that obviously have very low risk of presenting online safety concerns, and yet another hit to small businesses, more red tape, and again the pleas from small business to exclude them from this bill, have not been heard, and they’ve been included.
Reporter: But aren’t you asking here for a level of detail in the carveouts and in the listing of harms that is almost unreasonable to include in legislation? To get to that level of granular detail, when there are many pieces of legislation that include broad terms, and then that is interpreted by the regulatory body, by the Commissioner, and then there is a legal process in which they can be challenged, and a precedent can be set. I mean, this is the basis of lawmaking. How can we get to such a level of granular detail that’s going to be able to satisfy you?
Senator Henderson: Lawmaking is for the parliament, and when our free speech is under threat, these are matters which should become before the parliament. Having such broad, dangerously vague definitions in this bill means that you are going to have an unelected bureaucrat making decisions about Australians’ free speech, and that is not good enough.
Reporter: But it has come before the parliament, you’ve decided not to engage. You’ve decided to let the Greens engage, and that’s arguably something you wouldn’t want.
Senator Henderson: We have said very strongly that this is a dangerous and undemocratic proposal. We know the government’s agenda. The government’s agenda is to censor its political opponents. The Prime Minister let the cat out of the bag when he gave that speech in New York, and so we think the government is going about this the wrong way. This is a dangerous step in the wrong direction.
Reporter: How many small businesses do you think are going to be impacted by this? Because realistically, a small business has a website that doesn’t have a chat feature, that doesn’t have the ability to share, you know, photos or data with other people, the self-assessment risk is, we have no risk, therefore, we don’t need to worry.
Senator Henderson: It’s another regulatory burden. Why should that burden be placed on small businesses? COSBOA has raised very serious concerns, including in their submission, their voice was not heard, and that’s deeply concerning. Can I also say this comes on a day when I have again said very clearly that the party is over for Anika Wells. She should not be in this job. She has clearly breached her travel entitlements. Further evidence has emerged today through a freedom of information search that we did, which shows that the meetings that she said she held on the day of the birthday party in Adelaide, the evidence is mounting that they were concocted, and that is a prima facie breach of the ministerial standards. The Prime Minister should have stood his minister down and it is a shocking reflection on his regard for integrity that that has not happened. Thanks very much, everyone.