A controversial Bill to regulate online activity in Australia has been pushed to a senate committee inquiry despite hundreds of submissions remaining unpublished, several of which criticise the broad powers the proposed laws create.

Which-50 can reveal the government received more than 400 submissions to its proposed changes to online safety laws in just two months over the summer holiday. 

Just 10 days after the consultation period ended the government introduced the controversial bill to parliament without significant amendments, according to stakeholders who say their feedback has not been properly considered.

Feedback on online safety law reform has exploded since the government released its proposed changes, which critics say could lead to censoring online content and harm vulnerable groups including the LGBTIQ community and sex workers.

A spokesperson for the Department of Infrastructure, Transport, Regional Development, and Communications said the department was still “seeking clearance to release submissions” from the December to February consultation period for the government’s exposure draft.

The delay in publishing the feedback comes as the proposed legislation is pushed to a senate inquiry and the communications minister defends the laws against claims of censorship and overreach.

Following questions from Which-50 to the Department of Communications, some of the most recent submissions have been published in the last 24 hours, each expressing concerns with the proposed laws.

Online Saftey Bill 2021

The Online Saftey Bill 2021 sets out out a new regulatory framework for online safety and hands new powers to the eSafety Commissioner to intervene online. Under the laws, the commissioner will be able to have more online content removed, and put more pressure on online service organisations to protect the safety of their users.

The government says the laws are necessary to expeditiously remove harmful content, reduce cyber abuse and stop the non-consensual sharing of images. The prosed changes follow a 2018 review of Australia’s online safety laws that called for major reform to the structure of online safety laws and a more proactive approach to regulation.

While the objectives of the reforms have been widely welcomed, civil society and rights groups say the new laws could eventually undermine digital rights and harm vulnerable groups. 

Concerns have also been raised over a lack of oversight proportional to the potentially broad powers which give significant discretion to the eSaftey Commissioner to have online content removed.

Section Nine of the bill creates an “online content scheme” that allows notices to be issued to online service providers to remove certain material. Users can complain to the eSafety Commissioner to have the content removed, and some groups are concerned the system may be exploited to have certain explicit content censored.

The current eSafety Commissioner, Julie Inman Grant, says she does not intend to use her powers under the legislation to remove consensual adult pornographic material online.

“My role as a regulator is to protect all Australians from online harm, it’s not to throttle the sex industry,” Inman Grant told The Guardian this week. “What happens between consenting adults is not my concern, as long as it’s not harming others.”

Communications Minister Paul Fletcher and Australian eSafety Commissioner Julie Inman Grant. Image: Twitter.

Pushing ahead

As the bill enters a likely final stage before becoming law, stakeholders say their feedback has not been properly considered by the government during a contracted consultation process.

An exposure draft of the Online Saftey Bill was revealed last December. Submissions for the exposure draft closed in mid February but are yet to appear on the Department of Communications webpage for the proposed Act.

10 days after submissions closed Communications minister Paul Fletcher introduced the bill to parliament and said more than 370 submissions had been made since he released the exposure draft in December.

The total is 376 submissions with an additional 32 made after the close date.

The bill was quickly referred to the Senate Environment and Communications Legislation Committee which also accepted submissions over the last week and is required to produce a report just one week later. Inquiry submissions close today.

On Monday Which-50 queried the status of the 370 plus submissions from the exposure draft. A spokesperson for the Department of Infrastructure, Transport, Regional Development and Communications said: “The Department is seeking clearance to release submissions. 

“They will be released in due course.”

The spokesperson also confirmed 86 submissions had been made during the previous consultation on the Online Safety Discussion Paper and 27 were made to the original 2018 review of Australia’s online safety laws, which ultimately recommended significant reform.

Concerns raised 

Digital Rights Watch, an organisation formed to promote and protect Australians’ digital rights, says the objectives of the draft bill are welcome but are “extremely concerned” with several aspects of the proposed law.

In its latest submission – which it published on its own website – the group argues the discretionary powers that would be handed to the eSaftey Commissioner warrant more transparency and reporting on their decisions.

“Appointing the Commissioner as the arbiter of appropriate vs “offensive” content is an outdated and dangerous way to treat online content, just as it would be inappropriate for an official to search a library seeking out and censoring certain content or arbitrarily prohibiting people from accessing certain books.”

Parts of the law could be applied broadly to sexual content, the rights group says, and “is likely to cause significant harm” to workers in the sex industry, including workers, educators and activists.

Groups representing sex workers have raised similar concerns that sex workers could be targetted by the laws or have their ability to earn money impeded by the removal of their online content.

In a submission to the current senate inquiry, Working Man, a Victorian advocacy group for gay male sex workers, said parts of the bill which allow certain types of pornographic content to be removed from the internet, would disproportionately affect the LGBTI community.

“We consider Part 9 [the online content scheme] to be an assault on freedom of expression online,” the Working Man submission says. “As Part 9 is not confined to harmful online content, we believe it has no place in a bill designed to address online harms.”

Child protection organisation the Prostasia Foundation also wants the online content scheme removed from the bill.

“The proposed extension of these existing powers to target adult content is an unjustified extension of Australia’s “nanny state” that would disproportionately impact marginalized communities, infringe Australia’s international human rights obligations, and do nothing to keep children safer on the Internet,” Prostasia Foundation’s senate inquiry submission says.

The group says it is also alarmed by the contracted consultation period and an apparent lack of regard for stakeholder feedback.

“…we must mention our surprise and concern that the bill was introduced at first reading a mere 10 days after 370 public submissions on the exposure draft were received, with no amendments reflecting the very serious concerns that we and other respondents raised.”

Communications minister Paul Fletcher sought to assuage fears of “censorship” in a blog post Monday, pointing to similar powers already existing and saying the new laws do not apply to political speech. 

“[The new laws] applies only to content which specifically seeks to harm or threaten a particular individual, or content which is so abhorrent that it would already be heavily restricted or prohibited under Australia’s long established classification laws,” Fletcher wrote. 

“Nor will this new law give eSafety new censorship powers as some have claimed.  Since 2000, the law has specified certain kinds of content, such as child sexual exploitation material, which cannot be shown online, and which can be the subject of takedown notices.”

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