Topics: Digital duty of care
Raf Epstein: Sarah Henderson, good morning.
Senator Henderson: Raf, very good morning to you.
Raf Epstein: You heard Jason Clare’s example there. What would be your response to him about that?
Senator Henderson: Well, my response is that the Online Safety Act already includes very strong protections against unlawful content. It regulates things like child sexual exploitation material. It includes very strong provisions against cyberbullying, cyber abuse, and the example that Jason Clare just gave would almost certainly be contrary to the law, a matter for police. And police, of course, have got very strong powers to act in relation to that sort of information or threats conveyed online. I mean, what we are seeing with the digital duty of care proposed by the government is something altogether very different. I mean, we want to see children better protected online. We want to hold big tech to account. There is more that needs to be done, Raf, but Australians have every reason to distrust Labor’s, what I would say, dangerous agenda to control what Australians see and say online, and that’s what this bill is all about, very sadly.
Raf Epstein: Let’s just sort of try and step through this. I know you’re very familiar with the legislation, not everyone is. The government’s argument is, look, you’ll still be able to say the moon landings are real. You’ll still be able to listen to a manosphere podcast, which I think is great content in terms of people might vehemently disagree about what’s in that, but the government says it won’t stop things like that. It’ll just give greater protection about, you know, fake nudes being posted or even threatening a fake nude being posted. If you can give me some examples, like what’s wrong with the legislation in your mind? You said you want more protections. What have they got not right?
Senator Henderson: Well, there’s a lot that they have got very wrong, Raf. And what the minister says is actually not what’s in the bill. So the bill contains all sorts of dangerously vague definitions, including things like – material or conduct which is hostile to women, or gender equality is prohibited. The minister has backed down on her extraordinary powers to prohibit any type of online harm, but she’s effectively given those powers over to the eSafety Commissioner, who can make guidelines as to how the digital duty of care is interpreted. There’s sweeping powers to create these fake sock puppet accounts to…
Raf Epstein: Can I just slow you down, Sarah Henderson? I just don’t want to go, I’m happy to get to sock puppets, maybe, but you mentioned the gender-based stuff. So if we can just maybe focus on that, the government says it will mean the platforms have an obligation not to encourage any gender-based violence. So that’ll be an obligation on the platforms. Is that something you want and does this law do that?
Senator Henderson: Well, the problem with the bill, it’s not what the minister says. So when you look at the definition of gender-based violence, and I’m going to go to section 25D, I’ve got the bill in front of me. It includes harassment based on gender. Now, the eSafety Commissioner lost a very significant case against Celine Baumgarten when Celine, a mum, raised legitimate concerns about a gender club at a primary school in Melbourne. The eSafety Commissioner abused her powers, and I believe provisions like this are to give the eSafety Commissioner the power to stop Australians engaging in genuine debate, these genuine concerns. Now, no matter what you think about this issue, Australians should be able to discuss it online.
Raf Epstein: You don’t trust the eSafety Commissioner?
Senator Henderson: What I’m looking at is, what are the powers the government is proposing to give itself? Because what the minister says is actually untrue. She talks about, you know, not doing this and not doing that. We’re not about the manosphere and yet, when I had a departmental briefing on why they need powers in relation to gender equality, the minister’s adviser and the department said, ‘Oh, we’re very concerned about the manosphere.’ So I don’t think this minister is telling the truth. She certainly isn’t telling the truth in relation to her travel expenses, and that’s in fact why I have called for the Prime Minister to stand her down. But look, there are so many things wrong with this bill.
Raf Epstein: Just to focus on specifics, Senator, you keep mentioning gender equality. What is it that you’re afraid you would no longer be able to say?
Senator Henderson: No, I’m mentioning gender equality because you specifically asked me about that. But there are many very vague definitions in the bill, and I’ve referenced my concerns about gender equality and the reference to gender-based violence.
Raf Epstein: Can you tell us what it is that you’re afraid we would no longer be able to say?
Senator Henderson: I think, as I’ve already explained, the eSafety Commissioner wants to shut down legitimate debate about extreme gender ideology. Now, no matter where you stand on this issue, people have got very different views. I happen to think that biological sex should be protected and the sex discrimination act…
Raf Epstein: Maybe trans athletes and those sorts of things, that that’s what you mean?
Senator Henderson: It’s so wide-ranging but this is not the only issue. There are many issues. So there are also issues about exclusions. So public officials are excluded from the digital duty of care.
Raf Epstein: Is that a good thing, Sarah Henderson? Public officials are excluded, news organisations are excluded, professional arts, science organisations, public health bodies are excluded. Isn’t that good? Because that’s a whole lot of protections of free speech?
Senator Henderson: Well, no, because if a public official engages in serious, unlawful, or other types of conduct, then no, it’s not at all.
Raf Epstein: It’s unlawful if it’s against the law, isn’t it?
Senator Henderson: Well, it is unlawful but it’s also a breach of it, it’s also potentially a breach of this act. So I don’t know and understand why there’s been this wide-ranging exclusion. There’s also a wide-ranging exclusion in relation to material that’s in the public interest. So rather than explicitly define…
Raf Epstein: But don’t you want that? You want free speech?
Senator Henderson: Let me just explain this. Rather than explicitly define what is in the public interest, and I do believe that news media and news websites should be excluded from the operation of these laws, and that’s something that I’ve prosecuted from day one. It’s going to be up to the eSafety Commissioner to decide what is in the public interest – because, I would say, that expressing my free speech is in the public interest. The eSafety Commissioner, ultimately, it will be a matter for her. She will invariably narrow down this definition if ever it sees the light of day, and so much power has been placed in her hands and any subsequent commissioner, once Julie Inman-Grant steps down, and so this is the concern. We want to have an online safety act which sets out specific prohibitions that Australians can understand…
Raf Epstein: So what would you prohibit, Sarah Henderson? I’ve only got a few minutes. Actually, if I can just remind everyone, you’re the shadow communications minister speaking about the federal government’s digital duty of care bill. You do seem to want some added protection, Sarah Henderson, but you’re unhappy with the way they’ve spelt it out. How would you spell out what should or should not be published?
Senator Henderson: Well, I’ll just explain why this bill is such a mess. So there’s 17 codes and standards which relate to unlawful material and age-restricted material, they will be abolished after 12 months. And now those codes and standards provide very specific obligations or digital platforms.
Raf Epstein: So, what would you? What would be in? So what would be in your plan?
Senator Henderson: Sorry, just let me finish, to detect, remove, and combat, you know, things like child sexual abuse material. It’s such a mess. We don’t know what’s going to happen when those codes are removed. It’s incoherent the way the government has …
Raf Epstein: I think I understand your criticism of the government’s plan. I’ve only got a few minutes left, though, Sarah Henderson. Can you give everyone some idea? You appear to want more protections. You don’t want to damage free speech. How would you spell out what should not be allowed to be said or published?
Senator Henderson: Well, we’ve given a couple of examples. We’ve taken some amendments forward, which were rejected by Labor and the Greens, to give parents greater control over their online experiences, including through access to parental safety tools, third-party safety tools, which give parents greater opportunities to filter and supervise what their children see online.
Raf Epstein: Would there be any greater restrictions on the social media companies? That’s what the government’s focused on. Are you focused on that at all or not?
Senator Henderson: Well the social media ban has not worked. That has been a disaster. So the government should go back to the drawing board and start to focus on how to make that work. But the other thing that we’ve raised is I think Australians also deserve genuine algorithmic transparency. So the right to understand what is being amplified, what is being suppressed, what is being censored. Now Twitter – sorry it’s no longer Twitter – X and Elon Musk, they actually publish their algorithm effectively for their ‘For You’ feed, and we think that’s a very good thing for transparency and for free speech.
Raf Epstein: Sarah Henderson, I’m going to leave it there. Thank you for answering the questions. Thanks for joining the show.
Senator Henderson: Lovely to talk to you. Thanks, Raf.