Criminal Code Amendment (Sharing of Abhorrent Violent Material) Bill 2019
MARK DREYFUS QC MP
SHADOW MINISTER FOR NATIONAL SECURITY
MEMBER FOR ISAACS
Criminal Code Amendment (Sharing of Abhorrent Violent Material) Bill 2019
HOUSE OF REPRESENTATIVES, CANBERRA
THURSDAY, 4 APRIL 2019
The terrorist atrocity committed in New Zealand on 15 March was on unspeakable act of violence committed by a coward against a defenceless group of worshippers at prayer. I take this opportunity to once again condemn, on behalf of Labor and all Australians, that act of terrorism that has brought so much death and so much pain to the people of New Zealand, and to so many people and to so many communities beyond New Zealand. I say again that an attack on any religion is an attack on all religions; it is an assault on our common humanity. We feel a national shame that an Australian was the perpetrator of this act of hate-fuelled violence in which 50 innocents were murdered. But his extreme right-wing ideology manifested last month in his act of cowardice and evil does not represent Australia or our values and beliefs.
The attacker's aim was to spread terror and to divide our community, and it was this goal—a common thread in terrorist atrocities, whatever their particular ideology—that led the perpetrator to record his atrocity and to seek to circulate it online. At the time, we called on all Australians not to share that awful footage, not to watch it and not to do anything that might in any way serve the objectives of the terrorist who committed this inhuman act of evil. But there is more we can do, as members of the Australian parliament, to stop the spread of terrorist materials produced by the perpetrators of these atrocities.
That brings me now to the bill before the House, the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Bill 2019. This bill represents the Morrison government's attempt to respond to the problem of terrorists seeking to spread recordings of their crimes through social media and other online platforms. Labor believes that social media companies must do more in preventing the dissemination of material produced by terrorists showing off their crimes. For that reason, Labor will—despite reservations I will explain shortly—be supporting the passage of this bill.
But I must be clear: this bill is clumsy and flawed in many respects. And that is in part because the government has been too cowardly to hold an adequate number of parliamentary sitting days before the election this year, so the parliament is being forced to deal with this bill on a ridiculous timetable. And it is in part because the government has been too inept to properly consult with the Australian technology industry and media companies, and the community, about the impacts of this bill on them.
When the Morrison government realised just how difficult it was for them when this parliament sits—in large part because of how many of their failures and scandals come to light through the scrutiny the parliament of Australia provides—they shamefully cut the number of days this parliament would sit before the election. In November last year, this government decided that the parliament would only sit for 10 days in 2019 prior to the election being called. Today is only the 10th sitting day of this House in 2019.
The member for Sturt declared that the sitting calendar issue was an example of 'inside-the-bubble issues'. What arrogance to believe that the government could predict with confidence that no events would occur over some six months before the election that might require this parliament's attention. What arrogance to suggest that laws that are supposedly urgent, like this one, are just 'bubble issues' the Liberal Party can't be bothered taking the time to deal with properly. What a self-serving and irresponsible dereliction of their responsibilities as the government of this nation. One of the consequences of that reckless and cowardly decision of the Morrison government to drastically shorten the parliament's time this year is that important and difficult laws such as this bill have to be rushed to such an extent that they cannot be properly drafted, consulted on or debated in this place.
Labor always seeks to work in a constructive and bipartisan manner on matters of national security. We have the track record to prove it through our constructive engagement on some 20 national security bills introduced by this government over the last 5½ years. In particular, in the last 5½ years, government and opposition members of the bipartisan Parliamentary Joint Committee on Intelligence and Security have worked together to make well over 300 bipartisan recommendations to change, improve and strengthen those 20 national security bills. On each occasion, the bill presented to the parliament required amendments to improve its operation and to deal with unintended consequences the government had not foreseen. This important process, in which national security bills are reviewed by the intelligence committee, has not occurred with this bill.
I say again: Labor always seeks to work in a constructive and bipartisan manner on matters of national security. But we are not bipartisan on the trashing of the proper processes that are needed to get our national security laws right. Labor received this bill just after 5 pm on Monday this week. It was rushed through the other place last night without any debate. If it is to become law, it must pass this House by the end of the day. This is no way to approach lawmaking in this country, and the precedent this government has set, not just on this bill, is atrocious. Not even New Zealand, where the Christchurch atrocity occurred, has attempted to make this change in such a short time frame. However, because Labor agrees that the streaming of the Christchurch terror attack has shown that there is a need for measures to prevent such conduct occurring in the future, Labor will not stand in the way of the Morrison government's clumsy attempt to deal with this issue, as set out in this bill.
But I do want to briefly outline some of the key problems that have come to light regarding these laws that will need to be addressed through an urgent committee process. I emphasise that these are just some of the problems that we've been able to identify in the short time we've had this bill. The bill could potentially undermine Australia's important security cooperation with the United States by requiring US internet providers to share content data with the Australian Federal Police, in breach of US law. The bill may encourage proactive surveillance of internet users by social media platforms and of the vast volumes of user-generated content being uploaded at any given minute. So, at the same time that we're worried about service providers like Facebook intruding on the privacy of users, this bill calls on those same platforms to constantly be analysing the content of every communications user across their platforms.
The bill could have an adverse impact on legitimate whistleblowing activity. The bill draws a seemingly arbitrary distinction between, on the one hand, a television station that broadcasts terrorist content and, on the other hand, a website hosting terrorist content. A television network could broadcast abhorrent violent material over the airwaves and not be captured by this bill, whereas Twitter could be prosecuted if a user tweeted the same video. Poor and inconsistent drafting is likely to have other negative implications for the effective operation of these laws.
Finally, despite the government announcing that a key purpose of this legislation was to enable the jailing of executives of multinational social media giants who breach its provisions, the bill does not do this. The framework in this bill represents a fundamental shift for online companies which are, generally speaking, platforms geared towards facilitating the sharing of content, rather than being structured around monitoring for the removal of content or proactive notification to third-party law enforcement agencies. The lack of consultation on this bill means that the government has not even considered the practical difficulties and significant compliance costs that these new laws will impose on a large number of companies.
While Labor agrees that tech giants like Facebook must do more to stop the use of their platforms to spread abhorrent terrorist materials, hundreds of much smaller companies are also caught by this bill, many of which may not have the resources or technical capabilities required to comply with the onerous new regulation imposed by this bill. It is also unclear what additional resources either the AFP or the eSafety Commissioner have been provided with in order to manage the potential influx of notifications from online companies. The government has not said.
All these problems have been clearly explained to the government, but these explanations have apparently fallen on deaf ears. This is no way to govern. But, in the few days we've had this bill, Labor have been listening and, if elected, a Shorten Labor government will immediately move to address these and other problems identified with this bill as a matter of priority. Specifically, in order to provide this bill with the scrutiny it should have had and in order to ensure that the problems I've just outlined are dealt with, if a Shorten Labor government is elected in May, we will refer this law to the Parliamentary Joint Committee on Intelligence and Security for consultation and comprehensive review. Neither proper consultation nor proper review has occurred as this chaotic and desperate government careens towards the election. There needs to be proper consultation with not just the social media sector but also traditional media, who are also caught up by this bill and whose legitimate journalism and online news sites will also be impacted on by these laws.
Finally, we need to consult with our allies and other like-minded nations across the world because there is little point in Australia taking unilateral actions that do not mesh properly with existing regulatory frameworks around the world. For example, there is scope to adopt the approach taken by the European Union in response to the 2016 Brussels terrorist attack. In response to that atrocity, in May 2016, the EU agreed with Facebook, Microsoft, Twitter and YouTube a code of conduct on countering illegal hate speech online. This code facilitates users' notification of illegal hate speech on social platforms, provides support to civil society in combating online hate speech and strengthens coordination with national authorities. Reviews of the code have indicated its success in helping to counter online hate speech, and, recently, Instagram, Google+, Snapchat, Dailymotion and Jeuxvideo.com announced their intention to also join the code.
I want to close with one additional matter. The terrorist atrocity committed in New Zealand last month was clearly driven by an ideology of hatred founded in racial and religious bigotry. The sharing of the footage the gunman recorded was appalling, and we need to take steps to prevent it happening again. But the fundamental evil we are seeking to eradicate is not the sharing of recordings of murderous violence; it is the violence itself. All Australians know well that the seeds of this violence lie in racist ideology, in racist hate speech and in the hate and fear that bigots, left unchecked, will spread.
For over 20 years, since it was enacted by the Labor government of Paul Keating, section 18C of the Racial Discrimination Act has drawn the line against racial vilification and protected our citizens and our society from the poisonous effects of racist hate speech. Yet, in the last five years, the Abbott-Turnbull-Morrison government has launched two separate attacks on section 18C, which former Attorney-General George Brandis infamously declared to the Senate was a Liberal government priority because 'people have a right to be bigots, you know'. It is astonishing that any Australian government would work to give a green light to racist hate speech, in support of an imagined right to be bigots, rather than working to defend the right of all Australians to dignity and to safety.
Labor were appalled by the actions of the Liberals in attacking section 18C, and we stood with thousands of individuals, legal experts and organisations as well as community groups from across our nation to successfully defend section 18C from these reckless ideological attacks by the Liberals. Labor believes that this Liberal government should accept that Australians do not want more racism and more bigotry in our community, and commit to never seeking to water down our racial hatred protections again. The Prime Minister should likewise insist that his coalition partners, the Nationals, put One Nation last. He cannot distance himself from the party he's in government with. It's not hard. He's the Prime Minister, and he should try to lead for a change.
In contrast to the Morrison government's glaring weakness on the issue of racism, Labor's unequivocal view is that racism has no place in modern Australia. Labor believes that the Australian government should be setting an example by standing up against bigotry rather than fighting for the rights of bigots and doing dirty deals with racist parties like One Nation, as the Liberals have been doing.