Senate

Criminal Code Amendment (Sharing of Abhorrent Violent Material) Bill 2019

Explanatory Memorandum

(Circulated by authority of the Attorney General, the Honourable Christian Porter MP)

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

1. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

2. The objective of the Bill is to address significant gaps in Australia's current criminal laws by ensuring that persons who are internet service providers, or who provide content or hosting services, take timely action to remove or cease hosting abhorrent violent material when it can be accessed using their services.

3. To this end, the Bill introduces Commonwealth offences into the Criminal Code Act 1995 (Criminal Code) that will apply to persons that provide internet, hosting or content services who fail to refer details of abhorrent violent material that records or streams conduct that has occurred, or is occurring, in Australia to the AFP within a reasonable time after becoming aware of the existence of the material. The Bill will also introduce new offences that will apply to persons who provide content or hosting services who fail to remove from, or cease hosting, on their services abhorrent violent material that is capable of being accessed within Australia.

4. Under the Bill, the eSafety Commissioner will have the power to issue a notice to a content service provider or hosting service stating that at the time of the notice the abhorrent violent material could be accessed using, or was hosted, on the person's service.

Human rights implications

5. This Bill engages the following rights:

the right to procedural guarantees in article 14 of the International Covenant on Civil and Political Rights [1976] ATS 5 (ICCPR)
the right to freedom from interference in privacy and correspondence in article 17 of the ICCPR
the right to freedom of expression in article 19(2) of the ICCPR,
the right to freedom from propaganda, discrimination and hatred in article 20 of the ICCPR, and
the right of the child to be protected from all forms of physical and mental violence including sexual abuse in articles 19 and 34 of the Convention on the Rights of the Child [1991] ATS 4 (CRC).

Schedule 1-Sharing of abhorrent violent material

6. The primary objectives of Schedule 1 to this Bill are to ensure that:

persons who are internet service providers, or who provide hosting or content services are reporting abhorrent violent material that records or streams abhorrent violent conduct that has occurred or is occurring in Australia to the Australian Federal Police (AFP), and
persons who provide content services or hosting services are acting expeditiously to remove from or cease hosting abhorrent violent material on their services.

7. Schedule 1 will introduce new offences that will apply to persons who provide internet, hosting or content services who fail to refer details of abhorrent violent material that records or streams conduct that has occurred, or is occurring, in Australia to the AFP within a reasonable time after becoming aware of the existence of the material. A maximum penalty of 800 penalty units will attach to these offences. These offences will apply to hosting services and content services irrespective of whether the person provides these services within or outside of Australia. A defence to these offences is that if there are reasonable grounds to believe the AFP is already aware of the details of the material, the obligation to refer those details will not apply. A defendant would bear the evidential burden to establish this belief.

8. Schedule 1 will also introduce new offences that will apply to persons that provide content or hosting services who fail to remove or cease hosting abhorrent violent material that is capable of being accessed within Australia. A maximum penalty of 3 years imprisonment or 10,000 penalty units, or both, will attach to these offences where an individual is found guilty. Where a body corporate is found guilty, the maximum penalty that will apply will be the greater of 50,000 penalty units or 10% of the annual turnover of the body corporate. Defences to these offences will be available in respect of abhorrent violent material that is related to assisting law enforcement, reporting of news and current affairs, public policy advocacy, good faith artistic work, research purposes, court or tribunal proceedings, and the performance by public officials of their duties (and individuals assisting these officials in their duties). These offences will not apply to internet service providers or providers of relevant electronic services such as chat and instant messaging services.

The right to procedural guarantees in article 14 of the ICCPR

9. Article 14 of the ICCPR establishes the rights courts and tribunals should provide to all persons, including procedural guarantees, the universality of the rule of law and the presumption of innocence. The United Nations Human Rights Committee has stated that 'article 14 of the Covenant aims at ensuring the proper administration of justice and to this end guarantees a series of specific rights'. The engaged right is provided for in paragraph 2 of article 14. It states that 'everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law'.

10. This right is engaged by sections @474.35 and @474.36 of the Bill, which set out the eSafety Commissioner notice regime and have the effect of placing an evidential burden on defendants in limited circumstances in respect of proving the offences under section @474.34. These sections provide that, in prosecutions where the defendant is accused of an offence under subsections @474.34(1) or (5), and the eSafety Commissioner has issued a written notice under subsections @474.35(1) or @474.36(1), it must be presumed that the person was reckless as to whether the specified material could be accessed using, or was hosted on, their service at the time the notice was issued. To overcome this presumption, the defendant must adduce or point to evidence that suggests a reasonable possibility that the person was not reckless as to this matter.

11. Article 14 is not an absolute right, it is subject to permissible measures that restrict rights provided they are prescribed by law and are reasonable, necessary and proportionate means for pursuit of a legitimate objective. While section @474.35 and @474.36 would engage the rights afforded by article 14 of the ICCPR, the sections would do so in a manner that is tailored to achieving a legitimate goal. The Bill's objective is to reduce the impact and reach of abhorrent violent material sought by perpetrators who intend to spread their violent and extreme propaganda. Abhorrent violent material produced by perpetrators and their accomplices has objectionable value as it often constitutes propaganda or recruitment material for further criminal activity, prejudices the dignity of the victims and has the potential to cause harm and distress to vulnerable sections of the community.

12. The offences included in the Bill are appropriately connected to the Bill's objective because reasonably limiting the rights provided by article 14 allows for the offences to operate as deterrents to content service and hosting service providers who fail to act in relation to abhorrent violent material.

13. The eSafety Commissioner notice regime not only operates to put content and hosting services on notice as to the existence of the abhorrent violent material that can be accessed using their platform but also reverses the evidential burden in respect of two elements of the offences. This has the effect of incentivising providers to comply with their obligations under the new offences.

14. As is the case in the Bill, the evidential burden is often reversed in circumstances where information pertaining to a defence is:

peculiarly within the knowledge of the defendant, and
it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.

15. Where a notice has been issued under @474.35 or @474.36, information that would prove the mental state of a person in relation to:

the accessibility of material using or hosting of material on a service, and
that the material was abhorrent violent material

satisfies the above circumstances to justify a reversal in evidential burden. These are reasonably limited and proportionate presumptions.

16. Additionally, the presumptions are not sufficient to prove an offence under section @474.34. A further element of that offence, that the person does not ensure the expeditious removal of the material, or expeditiously cease hosting the material, would also need to be proved by the prosecution.

The right to freedom from interference in privacy and correspondence in article 17 of the ICCPR

17. Article 17 of the ICCPR establishes the right to freedom from interference and correspondence in that 'no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence'. The remit of this right is established in greater detail by General Comment No. 16 of the Human Rights Committee. It states that such protections 'are required to be guaranteed against all such interferences and attacks whether they emanate from State authorities or from natural or legal persons'.

18. The offences under section @474.34 will deter content service and hosting service providers from failing to take action in relation to abhorrent violent material that can be accessed using, or is hosted on, their services. These offences criminalise failure to expeditiously remove or cease hosting abhorrent violent material from their services. This regime would indirectly limit the nature and volume of content that end-users are able to access and share with each other. This is because content service hosts and content service providers that provide or host content would become more proactive in ensuring they expeditiously remove or ceasing hosting abhorrent violent material. This would engage the rights provided by article 17 because it may affect the nature and feasibility of correspondence between Australian citizens, albeit only for a narrow and specific type of objectionable material.

19. The Bill's objective is to reduce the impact and reach of abhorrent violent material sought by perpetrators who intend to spread their violent and extreme propaganda. The audio and visual content produced by perpetrators has objectionable value as it often constitutes propaganda or recruitment material for further criminal activity, prejudices the dignity the victims and has the potential to cause harm and distress to vulnerable sections of the community. The Bill's engagement with article 17 is a necessary consequence of the pursuit of this objective.

20. In order to limit the reach of objectionable material, correspondence between individuals must, by definition, be limited to exclude the material in question. By targeting only the conduct of hosting service providers and content service providers instead of the conduct of end-users, the Bill would indirectly limit the correspondence of private citizens as a proportionate and necessary consequence of pursuing its primary objective.

21. It is also reasonable to argue that readily sharing objectionable material is not the type of correspondence article 17 aims to protect. In its preamble, the ICCPR states that 'the individual [has] duties to other individuals and to the community to which he belongs' and that 'freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights'. The unchecked proliferation of abhorrent violent material, which would include terrorist attack propaganda and audio and visual content depicting objectionable acts, is incompatible with the goals of the ICCPR and all other international human rights instruments.

22. The legitimacy of the Bill's objective in the context of its interaction with article 17 is further supported by the general comments of the Human Rights Committee. Paragraph 3 of General Comment No. 16 states that the 'term 'unlawful' means that no interference can take place except in cases envisaged by the law. Interference authorised by States can only take place on the basis of law, which itself must comply with the provisions, aims and objectives of the Covenant.' In this case, the laws proposed by the Bill are compatible with the tenets laid out by the preamble of the ICCPR. Again, limiting the reach of objectionable material promotes the objectives of 'freedom from fear' and fosters conditions 'whereby everyone may enjoy his civil and political rights'. The rational connection between the limitation imposed by the Bill and its objective is established in the pursuit of the ICCPR's overarching goals.

23. Following the logic of the general comments from the Human Rights Committee and considering the nature of the content, it is reasonable to conclude that indirectly restricting access to objectionable material is a reasonable, necessary and proportionate means to achieving a legitimate objective reducing the impact and reach of abhorrent violent material sought by perpetrators who intend to spread their violent and extreme propaganda.

The right to freedom of expression in Article 19 of the ICCPR

24. Article 19 of the ICCPR provides for the right to freedom of expression. Article 19(2) of the ICCPR recognises the right to receive and impart information and ideas through any medium, including written and oral communication, the media, broadcasting and commercial advertising.

25. The right to freedom of expression is not an absolute right. Article 19(3) stipulates that this right may be restricted by law if necessary:

for the respect of the rights or reputations of others, or
for the protection of national security or of public order, or of public health or morals.

26. New section @474.34 introduces an offence that would apply to hosting or content services that fail to expeditiously remove or cease hosting abhorrent violent material from their services. This will have the indirect effect of limiting individuals' ability to share and disseminate abhorrent violent material on these services.

27. Terrorism threatens Australia's national security and the rights and freedoms of Australians. It is essential that our laws evolve to reflect the current threat posed by terrorism. The attack in Christchurch of 15 March 2019 demonstrates that content services and hosting services can be used and are being used to publish material that records or streams terrorist attacks and may be used to spread other abhorrent violent material. The audio and visual content produced by perpetrators often constitutes propaganda or recruitment material for further criminal activity, prejudices the dignity the victims and has the potential to cause harm and distress to vulnerable sections of the community. The sharing and dissemination of such material increases the potential for harm to Australians and our national security.

28. Regulating the public's access to abhorrent violent material through section @474.34 is a legitimate and necessary measure to protect the safety of Australians. Requiring content services and hosting services to remove or cease hosting this material is likely to achieve this objective because it inhibits platforms from providing access to and hosting this material.

29. Indirectly limiting how private citizens may express their opinions is a proportionate and necessary consequence of pursuing the objective of this Bill. The offences do not criminalise an individual's expression; they simply limit the individual's access to platforms on which this expression may take place. Sharing abhorrent violent material can have a negative impact on well-being and could incite further violence. These measures are proportionate to the risk from abhorrent violent material. It is necessary to limit individuals' access to the materials to prevent the material from inciting further criminal offences, and to prevent harm to vulnerable people who access or inadvertently access the abhorrent violent material.

30. Further, these offences are entirely consistent with Article 19(3), which stipulates that the right to freedom of expression established by Article 19(2) may be restricted for the protection of national security, public order or public health or morals. Disseminating abhorrent material on content services and internet host services may threaten national security by serving as propaganda or recruitment material for further criminal activity, prejudice the dignity of the victims and has the potential to cause harm and distress to vulnerable sections of the community. The ability to readily share objectionable material is not a desirable outcome of a robust freedom of expression right. Requiring content services and hosting services to remove abhorrent violent material is consistent with the special responsibilities attached to article 19.

31. The Bill is proportionate and not arbitrary because it applies a defence in respect of abhorrent violent material, contained in section @474.37. Section @474.37 would not prohibit the sharing of abhorrent violent material or the freedom of expression in all circumstances, instead it would limit how this expression is disseminated. The offences under section @474.34 would not apply if access to abhorrent violent material is necessary to:

enforce the law
investigate or monitor compliance with the law
conduct proceedings in a court or tribunal
conduct scientific, medical, academic or historical research
report on news and current affairs in the public interest
assist public officials in exercising their duties
advocate for changes to laws, or
develop, perform, exhibit or distribute, in good faith, artistic work.

32. These defences mean that the new offences in section @474.34 would have a direct correlation with the objective of limiting the sharing of abhorrent violent material. The offences are not overreaching and will not catch instances where abhorrent violent material is accessible for a legitimate purpose.

The right to freedom from propaganda, discrimination and hatred in article 20 of the ICCPR

33. Article 20 of the ICCPR provides that 'any propaganda for war' and 'any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law'.

34. The objective of the Bill advances the rights contained in article 20. By limiting the availability of abhorrent violent material that may be used to promote or glorify discrimination, hatred and organised violence, the Bill espouses the inclusive and safe environment article 20 hopes to foster.

35. The events in Christchurch that precipitated the drafting of this Bill mirror the examples of hatred and incitement given by paragraph 2 of article 20. Restricting access to the audio and visual content produced by perpetrators of such events diminishes the potential for a perpetrator to advocate for further attacks and protects the targeted groups from discrimination, hostility and violence.

36. In adhering to article 20, the Bill also supports freedom of speech guarantees under article 19. General Comment No. 11 by the Human Rights Committee states that the prohibitions required by article 20 are 'fully compatible with the right of freedom of expression as contained in article 19, the exercise of which carries with it special duties and responsibilities'. Protecting vulnerable sections of the community from the damage of abhorrent violent material would constitute one of those special duties and responsibilities.

Schedule 2-Obligation of internet service providers and internet content hosts

37. The primary objective of Schedule 2 is to ensure that sufficiently high penalties are operating to deter internet services providers and internet content hosts from failing to refer details of child pornography material and child abuse material to the Australian Federal Police.

38. Schedule 2 contains an amendment to section 474.25 of the Criminal Code it which would increase the maximum penalty that can be imposed for breach of this section from 100 penalty units to 800 penalty units.

Right of the child to be protected from sexual abuse in articles 19 and 34 of the CRC

39. Article 19 of the CRC provides that:

States Parties shall take all appropriate legislative ... measures to protect the child from all forms of physical or mental violence, injury or abuse, ... including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has care of the child.

40. Article 34 similarly provides that "State Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse", including taking all appropriate measures to prevent "the exploitative use of children in pornographic performances and materials".

41. Schedule 2 promotes articles 19 and 34 of the CRC by ensuring that the maximum penalties for failure to refer child pornography and child abuse material to the Australian Federal Police more appropriately reflect the serious consequences for victims, their families and the community, particularly where there is underlying conduct of sexual abuse.

Conclusion

42. For the reasons given above, the Bill is compatible with human rights. Where it seeks to restrict those rights, it does so in a fashion that is necessary and proportionate to achieving the legitimate objectives of ensuring that:

persons who provide internet services, hosting service and content services are reporting abhorrent violent material that records or streams abhorrent violent conduct that has occurred or is occurring in Australia to the AFP
persons who provide content services and hosting services are acting expeditiously to remove or cease hosting abhorrent violent material from their services, and
sufficiently high penalties are operating to deter internet services providers and internet content hosts from failing to refer details of child pornography material and child abuse material to the Australian Federal Police.


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