Australian Greens co-deputy leader Senator Nick McKim has told the Senate his party wants the pending Online Safety Act withdrawn, asking for it to be re-drafted to take into account a number of concerns that were raised but not addressed during the Bill’s short consultation and scrutiny period.
Among other things, the Online Safety Bill 2021 extends the eSafety Commissioner’s cyber takedown function to adults, giving the power to issue takedown notices directly to the services hosting the content and end users responsible for the abusive content.
The Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021, meanwhile, repeals the Enhancing Online Safety Act 2015 upon commencement of the new Online Safety Act.
McKim, like many others, said the government has been “ramming these Bills through this Parliament without adequate consideration and without adequate scrutiny”.
The Bill was introduced to Parliament on February 24, eight business days after consultation on the draft legislation closed and before the 400-something submissions to the consultation were published. It was handed to a Senate committee on February 25 and after holding one public hearing, the committee scrutinising its contents handed down its report.
The government, McKim added, then sought to have the Bills “quickly and quietly waved through” and moved to exempt the Bills from the usual requirements that regulate how quickly Bills can be brought on for debate in the Senate.
“And as an example of the indecent haste with which the government has operated, these Bills were so rushed that the government is needing to use amendments to fix typos in the original Bill,” he said, addressing the Senate on Wednesday.
“So these Bills which are intended to protect people from cyber bullies, from cyber abuse, from the non-consensual sharing of intimate images, and from violent and extremist materials — commendable objectives — are being rushed through this place.”
The typo McKim referred to was the incorrect spelling of “bullying”.
In the original Bill, there was no complaints mechanism; that has since been rectified somewhat, with the directive given to the eSafety Commissioner to stand one up.
“In a way, the Parliament is being asked to sign a blank cheque in regards to the creation of that process. Because we have no possibility, as we stand here and debate this Bill today, to know what kind of process the eSafety Commissioner will establish,” he said.
He also said that just because the incumbent commissioner might be trusted to not misuse her forthcoming sweeping powers, her successor may not behave the same.
“It should be incumbent on Parliament to make sure that we legislate not just with one particular person in one particular position in mind, but with a clear-eyed focus on the need to make sure that protections will exist past the incumbency of any one person in any one particular position,” he said.
It isn’t just the rushed nature of the Bills the Greens have taken issue with, as they’ve also raised concerns about the bias that may arise from algorithms that have been conjured up to tackle the requirements of the Bill too.
“The Bills will also inevitably lead to online platforms resorting to automated processes based on algorithms and artificial intelligence to identify and remove content that could attract penalties,” he said.
“The use of AI and algorithms in in similar circumstances in places like the US has been extremely controversial, to say the least, and we are concerned that the use of those technologies could lead to disproportionate outcomes like blanket bans, even if that is not the intent of the commissioner.”
McKim said the use of algorithms and AI would also risk importing racial bias into the regulation of Australia’s online content ecosystem.
“We know that that is a risk, because that is exactly what has happened in the US under similar controversial laws,” he said.
Discrimination, he said, would also be faced by workers in the adult industry.
“We are concerned about the unintended consequences that could be both harmful to sex workers and adult businesses and to the broader community,” he said. “Under the Bills, as argued by Scarlet Alliance, sex workers will become more vulnerable as they potentially lose access to income safety tools and strategies and to vital peer connections. We’re also concerned that the Bills failed to provide to promote the maximum safety and privacy protections that they could.
“The Greens absolutely commend the stated objectives of these Bills to keep women children and the broader Australian community safe in online environments …. but we need to make sure that we don’t protect one set of rights by trampling over other rights.”
He said Bills this significant and targeted at problems so complex should receive full and proper scrutiny.
“And that is what the government, unfortunately, is seeking to deny.”
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