Topics: Digital duty of care
Chris Smith: Shadow Communications Minister, Sarah Henderson, joins us right now. Senator, welcome to the program.
Senator Henderson: Chris, it’s wonderful to join you.
Chris Smith: Let’s start with these fake identities, which I think is the real gotcha. What exactly would this legislation allow the eSafety Commissioner to do online with fake identities?
Senator Henderson: Chris, can I just firstly make the point that the Coalition is very focused on the need to protect Australians from seriously harmful material and also to hold big tech to account. But what this minister is saying about this bill, the digital duty of care, and what’s in the bill are two very different things. And there are some frightening attacks on free speech, including these sock puppet identities. So in the draft exposure draft, and it’s been narrowed slightly in the bill which has been released, the eSafety Commissioner has been given powers to assume a sock puppet identity for the purposes of performing her functions, which could mean almost anything, and that allows her to create fake anonymous accounts to track people online with no or very little safeguards. This is a bridge too far. I mean, we want to keep particularly children safe online, but the idea that the regulator controls the internet with these extraordinary powers, and of course, there’s no limitation on the ability of the government to spread its own misinformation or propaganda using these fake identities.
Chris Smith: Exactly.
Senator Henderson: Because that’s what the bill actually allows the government and the regulator to do. So every Australian should be concerned about this egregious attack on free speech, which is all about the government’s focus on shutting down its political opponents. And why do I say that? We know that because that’s what the Prime Minister said in his speech in New York when he was attending the United Nations, he actually said that the next stage of the digital duty of care is to combat misinformation and disinformation as he sees it, and that’s all about shutting down these extreme views, as he calls them, on the left and the right.
Chris Smith: All the stuff that we reliably and admirably stand for. If we don’t agree with what Anthony Albanese stands for, he has every right to use these bots, to use the eSafety Commissioner, to make sure those of us who put scrutiny on the government are silenced. That is so easy to happen, and it doesn’t just mean the Labor Party, it’s any party, any Prime Minister.
Senator Henderson: Look, this is a dangerous proposition, not just for this government, but for any government. I mean, if the government needs additional powers in relation to regulating serious harms online, it should say specifically what they are. But this is just open slather. This so-called digital duty of care to keep Australians safe online allows very wide-ranging discretions as to what constitutes online harm, and there are some absurd definitions which are dangerously vague. So, for instance, anything that promotes hostility towards women or gender equality when it comes to harmful material directed at children, that is prohibited. Now, when I actually asked in a departmental briefing, what does that mean? I was told, well, we’re very concerned about the manosphere. We’re very, the community, is very concerned about these podcasters and what hateful messages they’re spreading. I mean, this is, as I say, this is not just a bridge too far, this is a shocking attack on free speech, and that is why the Coalition is saying very strongly we cannot support this bill. This bill must be scrapped. It is dangerous. It is undemocratic, and Australians should not stand by this government when it tries to do things like this.
Chris Smith: The other thing is, Sarah, I’m an adult. I can choose to see, to say, to receive what I want. Why can’t I have that right?
Senator Henderson: Well, look, there are certain types of material that, you know, the government and we made, when we were in government, decisions that should not be online. So let me just explain. And there are a range of mandatory codes and standards which outline very specific prescriptive obligations on digital platforms to do things like detect and remove child sexual abuse material, terrorism material, material that you know depicts graphic and extreme violence. So those codes and standards have been operating very well. I mean they are complicated. They do impose very specific obligations on platforms, but they also protect Australians. But this idea that anything that the government says is harmful, you know, within some limitations, but anything the government that says is harmful is therefore prohibited is just shocking. So we’re very proud of the work that we did in establishing the eSafety Commissioner, in establishing the Online Safety Act and making sure that Australians, and particularly Australian children, are safe online. But this is absurd, and as the Prime Minister has conceded, you know, we know he lies often, Chris, but in this case, I think he was telling the truth. He’s now taken this part of his speech off his website, so it’s been scrubbed from the record, but he admitted it, that this is what they’re focused on: shutting down their political opponents and using this legislation as the way to do it.
Chris Smith: Now, Anika Wells and the cabinet have backed away from allowing the minister to decide what is misinformation and disinformation. Does that mean that the parliament will decide? The problem with that, of course, is if the government of the day have the numbers in both houses, they can define misinformation and disinformation the way they want?
Senator Henderson Well, that’s exactly right. So you’re quite correct. The government, in its exposure draft, had a clause which said that the minister had unfettered powers to make rules in relation to any online harm, as she saw fit, and that you know, just meant that it was completely open slather. So that particular ministerial discretion has been removed, but there are still very wide-ranging and sweeping powers. Effectively, many of those powers have been moved across to the eSafety Commissioner, so she can now make rules as to…
Chris Smith: That’s just bad. That’s just as bad.
Senator Henderson: So she can actually set out a guidance as to what the digital duty of care actually means.
Chris Smith: Okay but Sarah, if she decides to do it, not to the liking of the public, can we get rid of her? No, she’s not elected?
Senator Henderson: Well, she’s an unelected bureaucrat. She, I mean, the position, of course, will continue. She is leaving early next year, so I’m not reflecting on Julie Inman-Grant personally. But yes, there’s very wide-ranging powers that have been handed across to the eSafety Commissioner, and there’s also wide-ranging powers in relation to material that’s harmful to children. So, in 25E of the bill, and I’m looking at right here, “any other material or conduct or combination of material and conduct that may cause serious harm to children” can be prohibited. Now that’s going to be a decision, you know, effectively by the minister and the eSafety Commissioner. I mean, that could include material that challenges climate science.
Chris Smith: Yes.
Senator Henderson: I mean, how do we know? I mean, that could include material which challenges the crazy net zero fraud being imposed on us by the government. I mean that could include any type of material. There are no safeguards at all. And what the government should be doing is, as we did when we were in government, prescribe very clearly what those online harms are that should be prohibited, like child sexual abuse material.
Chris Smith: Well, that needs to come with the legislation, Sarah? That needs to come with the legislation. You can’t make it up once the legislation is passed, wouldn’t you agree?
Senator Henderson: And look, that’s exactly right. And I’ll also explain there’s this new section called excluded material, section 25F. Now, bizarrely, it includes, so anything that is a film or computer game, which is classified under the Classification Act, is excluded material. Now, that includes pornography. So, the government recognises that pornography is harmful to children, and there are age-restricted codes which prevent pornography being shown to children, and yet now under this bizarre legislation, the government is excluding pornography from the operation of the Act. I mean, it just goes to show that the minister doesn’t know what she’s doing. The other thing that’s concerning is that a public official and the public official’s official duties are exempt. So no matter what a government or a minister might put up online, that’s completely excluded. Bizarrely, also anything in the public interest is excluded. Now that definition is so broad. I mean, I think personally that my freedom of speech is in the public interest. So what that will lead to is the eSafety Commissioner making a determination about what is and isn’t in the public interest. That therefore gives her the power effectively to decide. And again, these are so dangerously vague definitions. The government could do almost anything, and it’s just, look, as I say, it’s a dog’s breakfast. It is a risk to our free speech and it’s got to be stopped.
Chris Smith: It is and it’s got to be stopped. And you know, you mentioned about climate change. I noticed that Chris Bowen two and a half weeks ago used the words, ‘there’s too much misinformation and disinformation about the renewable transition.’ In other words, are we going to be stopped from saying it’s one of the most expensive programs to ever be undertaken by the federal government in history? Because that’s what it is. You know, he wants to talk about the sun being free. He wants to talk about the wind being free. I want to talk about how much money it costs to create the infrastructure to get the sun and to get the wind and create energy, but you know, under his definition, I’m telling porkies. So what happens? He tells the Prime Minister, the cabinet tell the eSafety Commissioner. All of a sudden, there’s no scrutiny on the most ridiculous program we’ve ever seen instigated?
Senator Henderson: Well, that’s right and if we didn’t have that scrutiny, if we didn’t have that political dissent, we would never see any change in policies. And of course, we have a strong history in our democracy of disagreement and dissent, which leads hopefully to better outcomes. But as I say, under this particular provision, the government could deem any material or conduct that may cause serious harm to children to be prohibited. So it is open slather. The other thing that I’m really concerned about, and I referenced this before, the prohibition against material or conduct that is hostile to women or gender equality. I mean, we don’t even know what that means. But between the exposure draft and the bill being introduced, the government has slipped in another definition of seriously harmful material and conduct, and that is material or conduct that encourages, promotes, incites, or instructs gender-based violence. Now, on its face, that sounds like there’s a legitimate reason to doing that. But when you go to the definition of gender-based violence in another part of the legislation, it includes harassment based on gender. Now, I believe that’s all about shutting down legitimate debate about extreme gender ideology, and you might recall the Celine Baumgarten case where she raised concerns about a gender club and the teaching of gender ideology at a primary school in Melbourne, and she highlighted that on her social media page and social media account, and she was shut down by the eSafety Commissioner.
Chris Smith: Correct.
Senator Henderson: Celine then went to the Federal Court to challenge the eSafety Commissioner. She exposed the fact that the eSafety Commissioner had abused her powers because it did not constitute serious cyber abuse, which is what the law actually says. And so I think that this is a backdoor way of shutting down legitimate debate about these matters, which is pretty ironic because, as we know, the government doesn’t even know what a woman is anymore because they’ve expunged the definition of biological women from the Sex Discrimination Act.
Chris Smith: And heaven help us once this is passed. Heaven help us if we state the biological facts, Sarah?
Senator Henderson: Well, look, this legislation is so broad, it is so dangerous, and I really hope that it is not passed. And can I just remind your listeners, please go to protectfreespeech.com.au. I’ve got a petition running at the moment calling on all Australians to sign our petition.
Chris Smith: Great.
Senator Henderson: But the Greens are sitting on the fence on this legislation. I am really hopeful that they might look at this and say that this is, in some respects, worse than Labor’s failed misinformation and disinformation laws from two years ago. Because just imagine any future government might decide to make rules to shut down views on the left, and you know, and so it’s a threat right across our democracy. And it doesn’t matter what we want to express. We’ve got the right to express our views, whether you know whether you sit on the left in the middle or on the right of politics, whether you’re a mum in a primary school, whether you’re, you know, running any sort of organisation, we have to preserve this fundamental right. And for a minister and a regulator to control what we can say and see online with such unfettered powers is really concerning.
Chris Smith: Well done. Just again, that website for the petition protectfreespeech.com.au?
Senator Henderson: Yes, please go to that website. Please sign our petition. We just want to gather as many signatures as we can to show how toxic this proposal is. I mean, we know this government is toxic in so many ways. This is a government destroying our country, frankly, and with the economy going off the rails and all the other terrible things that are happening under Labor. You know, so many Australians are struggling with the cost of living, soaring inflation, declining productivity, and of course, we are very focused on our plan, which is all about protecting our way of life and fixing our economy, and that’s got to be the big focus which is why we are working so hard to get rid of this truly dreadful government.
Chris Smith: Senator Sarah Henderson, thank you so much for your time this morning.
Senator Henderson: Wonderful to talk to you, Chris. Thank you so much.
Chris Smith: Good to catch up again, absolutely, Sarah Henderson.