BILLS;Enhancing Online Safety for Children Bill 2014, Enhancing Online Safety for Children (Consequential Amendments) Bill 2014;Second Reading – 03 Mar 2015

 I am pleased to have the opportunity to speak on the Enhancing Online Safety for Children Bill 2014 and the Enhancing Online Safety for Children (Consequential Amendments) Bill 2014. Child safety and child protection are issues that are of great interest and importance to me.

I have had extensive involvement in the issue of online safety for children, and I have worked with many schools to promote online safety programs and resources. I want to quickly pay tribute to the fantastic work that is done by the Australian Communications and Media Authority, which develops some great materials and online resources for children of all ages, parents, schools and others. These materials include various brochures, the Cybersmart website and the Cybersafety Help Button, to name a few.

My interest in online safety for children, and online safety generally, also stems from my service in this place as the chair of the Joint Select Committee on Cyber-Safety and the Senate Select Committee on Cyber-Safety. Labor recognises that some doubt has been expressed through consultations about the effectiveness of the bills currently before the Senate. However, we are willing to allow this regime to be tested, and we will support the bills. While it is positive to see any government taking initiative in this area, I am a little disappointed in some aspects of the Abbott government’s approach. If the government is seeking the best outcome for the safety of children online then they would do well to work with the opposition on bipartisan solutions.

During my time as chair of the Joint Select Committee on Cyber-Safety and later as chair of the Senate Select Committee, I had a great working relationship with my counterparts from the other side, particularly the member for Mitchell, Mr Alex Hawke, who served as deputy chair of the joint committee. In fact, I had a pretty good working relationship with all members of both committees, and I believe we produced some excellent reports.

I am disappointed that we no longer have a cybersafety committee, as I think those committees were a useful forum for working together on bipartisan solutions to cybersafety issues. On the subject of online safety for children, shortly before my time as chair the joint committee produced an extensive report—I think it was about 400 pages—titled High-wire act: cyber-safety and the young, which both Senator Ludlam and Senator Ruston mentioned. That report looked comprehensively into the issue of online safety for young people, obviously including children, but anyone under the age of 18. Despite the rapid advance in online technologies, I think the report still has currency today. This was a unanimous report, and Labor, when in government, accepted all of its recommendations. There were 32 recommendations in the report and there was an overriding message that the problem of online safety for children requires a response in which government, industry, schools, children and their parents, and the broader community all work together. This is why Labor in government established two cybersafety advisory groups—the youth advisory group and the teachers and parents advisory group—both retained by this government, to its credit.

Labor also provided funding to the ACMA for its Cybersmart program, which provides extensive educational resources to children, parents and schools, and we established cooperative relationships with companies that run social networking sites such as Facebook, Google, Yahoo! and Microsoft to ensure that material which is offensive or breaches Australian law is taken down as soon as possible. The Cooperative Arrangement for Complaints Handling on Social Networking Sites protocol came directly from one of the recommendations of the High-wire act: cyber-safety and the young report. This particular initiative encouraged the major social media companies to take a look at their own practices for dealing with cyberbullying and other complaints on their platforms. Just recently, the CEO of Twitter, Mr Dick Costolo, wrote an email to his executive team about his embarrassment at not effectively tackling cyberbullying. In his email Mr Costolo said:

We suck at dealing with abuse and trolls on the platform and we’ve sucked at it for years. It’s no secret and the rest of the world talks about it every day. We lose core user after core user by not addressing simple trolling issues that they face every day.

I’m frankly ashamed of how poorly we’ve dealt with this issue during my tenure as CEO. It’s absurd. There’s no excuse for it. I take full responsibility for not being more aggressive on this front.

I should point out that Twitter did not sign up to the protocol. But, given their CEO’s recent comments, maybe signing up to the protocol would be a great way to demonstrate that they are serious about tackling these issues.

Despite the fact that Twitter did not sign up, the protocol was a positive step in the previous Labor government’s measures to promote cybersafety. All up, Labor committed $125.8 million to cybersafety initiatives. They were good initiatives, informed by a committee which had representation from across the political spectrum. To build on these initiatives, I think we would get better legislative outcomes by having a bipartisan approach. As such, personally, I would like the Joint Select Committee on Cyber-Safety or the Senate Select Committee on Cyber Safety re-established at some point in the near future.

Before I talk about the bills themselves, I would like to focus a bit on online bullying, otherwise known as cyberbullying, and why it is important that we have specific measures to combat it. A 2014 study estimated that 20 per cent of Australian children aged eight to 17 were victims of cyberbullying during one year, with 463,000 children estimated to have been affected. Interestingly, the most prevalent forums for cyberbullying are social media sites like Facebook rather than chat rooms or online forums. More and more children now own or access internet connected devices at an earlier age. In fact, there is a four-year-old in my immediate family who can outshine me working my iPad on a number of levels, which I find slightly embarrassing, but it is just that that is what he has been brought up with and what he knows. Some of us, as Senator Ruston alluded to, are the generation that just missed that spot, and so we find it a bit harder in some areas. But it is interesting to see a four-year-old—and even when he was three—asking me for my password so he could access my iPad because he wanted to watch the cartoons that he could watch on there. It was really interesting to see.

More than half access their first internet connected device before the age of 10, and 43 percent of 14- to 17-year-olds own a smartphone. The chief executive officer of the Alannah and Madeline Foundation, Dr Judith Slocombe, has said: ‘There is no difference between someone who bullies online and one who bullies face-to-face. They are just different methods. They both can cause enormous harm.’ In some respects, Dr Slocombe is right. Cyberbullying, after all, is often a continuation of face-to-face bullying by the same perpetrator. But I think there are aspects of online bullying that make it different to face-to-face bullying. First of all, children usually have relief from face-to-face bullying at home, whereas online bullying can occur 24 hours a day, seven days a week. While several children may witness an incident of schoolyard bullying, online bullying can potentially have an audience of thousands, often resulting in greater humiliation for the victim.

Cyberbullying expert Associate Professor Shaheen Shariff equates the online environment for children to the island in Golding’s 1959 classic Lord of the Flies, saying that the lack of supervision and regulation allows the practice to escalate to life-threatening levels. Unlike face-to-face bullies, cyberbullies can also have the benefit of greater anonymity. It leads to the perception that cyberbullying is more difficult to detect and that the bullies are less likely to face the consequences. We know that all forms of bullying can have serious health consequences, leading to psychological effects like low self-esteem, depression, anxiety and, in the worst cases, self-harm or suicide. I am sure that everybody has heard of some of the cases of young people taking their own lives because they have been bullied online. The anonymous and 24/7 nature of cyberbullying can actually exacerbate the harm because it makes it more difficult for the victim to escape it. Children can usually escape face-to-face bullying at school, whereas from cyberbullying there is often no respite.

The bills currently before the Senate provide a legislative response to bullying in the digital age. While all states and territories have laws against bullying, it can be resource intensive for police to investigate and prosecute cases of online bullying. I will just briefly outline what the bills seek to achieve. The primary bill establishes a children’s e-safety commissioner and sets out its functions and powers, which relate to a defined prohibition against ‘cyber-bullying material targeted at an Australian child’. A child or their representative can complain to the commissioner that they are or have been the subject of cyberbullying material targeted at them. The commissioner may investigate such complaints. The bill sets out an expectation of the parliament that each social media service will comply with a set of basic online safety requirements. This includes minimum standards in a service provider’s terms and conditions of use, a complaints scheme, and a dedicated contact person.

This bill creates two tiers of social media services. Tier 1 comprises social media services which have applied to the commissioner to be declared as such. Social media services within tier 1 may be requested by the commissioner to remove material that has been the subject of a complaint, such as cyberbullying material which has been targeted at a child. A tier 2 social media service may be issued a social media service notice by the commissioner which requires the removal of such material. The commissioner also will have the power to issue notices to end users who post cyberbullying material, which can include a requirement for them to remove that material. The remedy for non-compliance with such a notice is to seek an injunction from the Federal Circuit Court.

If a social media service fails to comply with the basic online safety requirements, a request to remove subject material or a social media service notice, then the commissioner may make a statement to that effect and publish it on its website. In relation to non-compliance with the social media service notice, the service may be liable to pay a penalty of 100 penalty unions which currently equates to $17,000. The commission has other functions including the promotion of children’s online safety and coordinating the activities of other departments relating to the same.

Also introduced with this bill is the Enhancing Online Safety for Children (Consequential Amendments) Bill, which contains consequential and transitional provisions in the legislation. The financial impact of the bills is relatively minor. It is just under $40 million over the forward estimates. The bills were referred to the Senate’s Environment and Communications Committee for inquiry and report. I will just reflect on some of the submissions to the bill and what they said in relation to its provisions.

All up there were 29 submissions. Throughout the submissions, there was strong support for both the proposed Children’s e-Safety Commissioner and the take-down notice regime. Several submitters commented about the importance of having a focal point for co-ordinating government actions to protect children online, including the actions of state and territory governments. It is proposed in the bill that the e-Safety Commissioner be a statutory office within the Australian Communications and Media Authority, ACMA.

The Australian Medical Association submitted that, while they were comfortable with the arrangement to have the commissioner working under the auspices of the ACMA, it is important for the commissioner to also have access to child and adolescent health and development expertise to inform its activities.

The AMA also recommended that the e-Safety Commissioner work with the National Children’s Commissioner, who has already done some work in relation to cybersafety thus avoiding duplication of effort. This was also supported by the submission from Families Australia, who went further and suggested that the commissioner’s role be placed with the National Children’s Commissioner or the Human Rights Commission, or that the Children’s Commissioner’s role be extended.

The National Association for the Prevention of Child Abuse and Neglect, NAPCAN, expressed some concern about whether giving the commissioner responsibility for administering the ACMA’s online content scheme would distract the commissioner from a dedicated focus on the online safety of children. The Association of Heads of Independent Schools Australia pointed out that schools are at the front line of dealing with bullying by children, especially cyberbullying, and proposed that there be a formal mechanism for the commissioner to consult with schools.

In relation to end-user notices, the Australian Psychological Society pointed out that developmental research supports an educational and restorative approach to cyberbullying rather than one that is punitive. This means the legal framework should aim to prevent rather than punish, and promote diversionary programs rather than fines for young offenders. As I mentioned briefly earlier in this contribution, there were some doubts expressed about the effectiveness of the proposed regime. The Australian Psychological Society questioned the evidence base for implementing the system and proposed rigorous evaluation of the process and impact.

We do need to recognise that the provisions of this bill, as with any bill that seeks to regulate the online environment, are only effective insofar as they relate to Australia’s jurisdiction. As the New South Wales Advocate for Children and Young People pointed out in his submission, there are small offshore companies providing social media and other online communication services that are outside Australia’s jurisdiction. This is a problem that confronts any national government when it tries to regulate behaviour in the online environment.

The other technical challenge is trying to remove material that has been shared more broadly, especially if it has reached a number of different platforms. The technical challenges of implementing this regime highlight that the problem of tackling cyberbullying requires more than just a regulatory solution. It requires a broader approach involving children, parents, teachers and the wider community. Once again, I refer back to the lessons in the High Wire Act report, that a coordinated approach is needed.

We need to provide children with cybersafety education and conflict resolution skills so they have the tools necessary to deal with online bullying and are encouraged to report it. These messages need to be promoted and reinforced through teachers and whole-of-school cybersafety education programs. As I said earlier, the ACMA provides some fantastic resources and materials to support children in learning how to keep themselves safe online, as well as resources and materials for parents and educators to help them keep children safe online and reinforce those safety messages. It is vital that the ACMA continues to be adequately resourced to deliver its suite of online safety resources, which are of great value to many children, parents and schools. After all, the Children’s e-Safety Commissioner is a complement to the ACMA’s other cybersafety programs, not a replacement.

We also need parents to learn how to talk to their children about cyberbullying, how they can cope with it, and the importance of their child talking to someone they trust about it when it happens. I recall during the inquiry that a lot of young people would tell us that they would not actually tell their parents they were being bullied because they thought their parents’ response would be just to take away the iPhone, the iPad or the computer or whatever instrument was being used. It was quite interesting that a lot of parents thought that if you did that or somehow stopped them using it that the bullying would automatically stop, but it does not. What often happens is that even if the young person is not even able to physically view the bullying at a precise moment, up to thousands of other people certainly can if the perpetrator has a wide network.

The Australian Council on Children and the Media, in their submission to the inquiry, highlighted the importance of involving parents in partnership with schools in educating their children about being safe online. The involvement of parents in all aspects of cybersafety education was also canvassed extensively in the High Wire Act report, particularly as it helps to reinforce the messages provided by schools and government.

Awareness of cybersafety also needs to be backed up with technologies that help schools to monitor internet use and children to report incidents or seek help. Parents also need to be aware of the resources that can help them to manage their children’s internet usage at home. I do not believe these bills are a silver bullet. They are but one piece of a larger puzzle.

There is more work to be done on how the government can facilitate an effective whole-of-community approach to tackling cyberbullying. My message to the government is, ‘Let’s work together on the bigger picture, as we did through the Joint Select Committee on Cyber-Safety,’ because in this area of policy the best solutions are going to be bipartisan solutions.

I commend the bill to the Senate.