Explanatory Memorandum
(Circulated by authority of the Minister for Communications, Urban Infrastructure, Cities and the Arts, the Hon Paul Fletcher MP)Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021
The Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021 (the 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
The Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021 (the Bill) is part of a legislative package, including the Online Safety Bill 2021, which will create a stronger online safety framework for Australians. The Bill deals with:
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- Consequential matters arising from the enactment of the Online Safety Bill;
- Increases to the maximum penalty for using a carriage service to menace, harass or cause offence under section 474.17 of the Criminal Code Act 1995 (Criminal Code) from three years' imprisonment to five years' imprisonment; and
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- Amendments to the aggravated offences and special aggravated offences in sections 474.17A and 474.17B of the Criminal Code to address issues of alignment and proportionality with the amendments to section 474.17 of the Criminal Code.
Schedule 1 to the Bill repeals the Enhancing Online Safety Act 2015 because, when passed, the Online Safety Bill will provide for much of the framework currently under the Enhancing Online Safety Act 2015, as well as provide additional powers to the Commissioner to keep Australians safe online.
Schedule 2 contains consequential amendments to other Acts arising from the enactment of the Online Safety Bill.
Schedule 3 contains transitional provisions for matters relating to the Commissioner, including the Commissioner's appointment, powers, obligations, investigations, liabilities, protections and applicability of notices at the time of enactment of the Online Safety Bill. Schedule 3 also contains application provisions relating to amendments in the Criminal Code.
Human rights implications
The Bill engages the following human rights:
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- The right to personal liberty and freedom from arbitrary detention in Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR);
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- The prohibition on interference with privacy and attacks on reputation in Article 17 of the ICCPR;
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- The right to protection from discrimination, exploitation, violence and abuse in Article 20(2) of the ICCPR; Article 6 of the Convention on the Elimination of all forms of Discrimination against Women (CEDAW); Article 16(1) of the Convention on the Rights of Persons with Disabilities (CRPD); and
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- The right to freedom of expression in Article 19(2) of the ICCPR.
Rights engaged by criminal offences and proceedings
Right to personal liberty and freedom from arbitrary detention - Article 9(1) of the ICCPR
The right to personal liberty set out in Article 9(1) of the ICCPR requires that persons not be subject to arrest and detention except as provided for by law, and provided that neither the arrest nor the detention is arbitrary. In addition to having a lawful basis for detention, the prohibition on arbitrary detention under Article 9(1) requires that in all circumstances, the detention of a particular individual must be reasonable, necessary and proportionate to the end that is sought.
The Bill engages the right to freedom from arbitrary detention under Article 9(1) by increasing the maximum penalties for particular forms of conduct criminalised under an existing offence, for which a court may lawfully prescribe a period of imprisonment for a person found guilty of the offence.
Section 474.17 of the Criminal Code provides that it is an offence to use a carriage service in a way that is menacing, harassing or offensive. Section 474.17A(1) provides that it is an aggravated offence to use a carriage service in a way that is menacing, harassing or offensive, contrary to section 474.17(1) and, in doing so, a person transmits, makes available, publicises, distributes, advertises or promotes material that is private sexual material. Section 474.17A(4) of the Criminal Code provides for a special aggravated offence if a person has committed an offence against section 474.17(1) and, before the commission of the offence, the person has had three or more civil penalty orders made against them under the Regulatory Powers (Standard Provisions) Act 2014 in relation to contraventions of section 44B(1) of the Enhancing Online Safety Act 2015. This Act prohibits the posting, or making a threat to post, an intimate image of another person on a social media service, relevant electronic service, or designated internet service, without that person's consent.
Increasing the maximum penalty for the standard offence at section 474.17 from three to five years' imprisonment is necessary to ensure that the seriousness of the offence is matched by a proportionate punishment. The penalty is necessary to facilitate the courts' ability to access similar sentencing for proportionate online/offline offences. This penalty would also address the Government's 2019 election commitment 'Keep Australians Safe Online and on Social Media' to increase maximum penalties in section 474.17 of the Criminal Code.
Increasing the maximum penalty at section 474.17A from five to six years' imprisonment for the aggravated offence is necessary to ensure that the serious offence of using a carriage service to menace, harass or cause offence with the transmission, making available, publication, distribution, advertisement or promotion of private sexual material, is matched by commensurate punishment. The penalty is also necessary to achieve the legitimate objective of ensuring that the courts are able to hand down sentences to online offenders that reflect the seriousness of their offending. The penalty is reasonable given that the penalties will only be applied by a court if a person is convicted of an offence following a fair trial in accordance with the criminal procedures as established by law. Maximum penalties are set to adequately deter and punish a worst case offender, while supporting judicial discretion and independence. The penalties will only be applied by a court if the prosecution has proved the elements of the offence beyond reasonable doubt. Further, the penalties will apply only to offences committed at or after the commencement of the amendments.
There are clear and serious social and systemic harms associated with online cyber-abuse. The penalty is proportionate as it supports the courts' discretion when sentencing offenders. It is the Australian Government's responsibility to ensure that maximum penalties for Commonwealth offences in legislation are sufficiently high to allow courts to impose appropriate punishments for the most serious offences.
To the extent that the measure engages the right to personal liberty and freedom from arbitrary detention in Article 9(1) of the ICCPR, the limitation is reasonable, necessary and proportionate in achieving the legitimate objective of ensuring that online offenders are appropriately sentenced for their offending.
Right to protection against arbitrary and unlawful interferences with privacy - Article 17(1) of the ICCPR
Article 17(1) of the ICCPR recognises the right to protection against arbitrary or unlawful interference with privacy, family, home or correspondence. Article 17(2) of the ICCPR recognises the right of everyone to the protection of the law against such interference.
The amendment in the Bill to capture the new civil penalties regime for image-based abuse as conduct that invokes the special aggravated offence at section 474.17A(4) is fundamentally directed towards protecting the privacy and reputation of vulnerable people. A pattern of offensive use of a carriage service to menace, harass or cause offence is repeated, serious conduct demonstrating a deep disrespect for the safety of others online, especially where a person has received multiple civil penalty orders. Offensive use of a carriage service for menacing, harassing and offending involving the sharing private sexual material as in the offence at section 474.17A is also a serious breach of a person's right to privacy, and often has serious, harmful and reputational consequences for the person depicted in the private sexual material. The amendments promote respect for the privacy and reputation of an individual by providing a further deterrence for sharing or transmitting private sexual material. By capturing the civil penalties order, the amendments promotes privacy by capturing patterns of ongoing behaviour, that on their own as individual instances, may not reach the criminal threshold.
Right to protection against discrimination, exploitation, violence and abuse
Article 20(2) of the ICCPR recognises the right to protection against the incitement of discrimination, hostility or violence on the basis of national, racial or religious hatred. The Bill may engage these rights to the extent that the sharing of private sexual material is motivated by nationality or ethnicity, or religious grounds. The amendments in the Bill promote respect against such prejudices by increasing the penalty for cyber-abuse, thereby deterring the conduct and punishing those who engage in the conduct.
Article 6 of the CEDAW provides the right to protection against prejudices and practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women. The Bill may engage this right to the extent that the sharing of private sexual material is intended to humiliate women on the basis of social prejudices that it is shameful for women to engage in sexual behaviour and that the woman is at fault for creating private sexual material. The amendments in the Bill promote respect against such prejudices by increasing the penalty for sharing private sexual material, including capturing a pattern of behaviour through the civil penalty orders regime, which individually may not reach the criminal threshold.
Article 16(1) of the CRPD provides the right to protect persons with disabilities from all forms of exploitation, violence and abuse, including their gender-based aspects. The Bill may engage this right to the extent that cyber-abuse, including the sharing of private sexual material, exploits a person's disability. The amendments in the Bill promote respect against such discrimination by increasing the penalty for cyber-abuse including the sharing of private sexual material, thereby deterring the conduct and punishing those who engage in the conduct.
Freedom of expression - Article 19(2) of the ICCPR
Article 19(2) of the ICCPR provides that everyone shall have the right to freedom of expression. This right includes the freedom to seek, receive and impart information and ideas of all kinds, through any media of a person's choice. Article 19(3) provides that the right to freedom of expression may be subject to limitation for specified purposes including the respect for the rights or reputations of others where such limitation are provided by law and are reasonable, necessary and proportionate to the legitimate objective. The requirement of necessity implies that any restriction must be proportional in severity and intensity to the purpose sought to be achieved. In order for the proposed laws to be considered a necessary restriction on freedom of expression on the grounds of privacy and reputation, the restriction must be clearly defined.
The Bill engages the right to freedom of expression in Article 19 to the extent that it increases the penalties for the existing offences at sections 474.17, 474.17A(1) and 474.17A(4) of the Criminal Code, as increasing the penalties for these offences have an impact on the use of carriage services to seek, receive and impart information.
However, to the extent that a person's right to freedom of expression is limited because of the increased penalties which apply to these offences, the measures in the Bill aim to prevent criminal activity and enhance respect for the rights and reputation of victims by increasing the penalties for the distribution and transmission of private sexual material To the extent that the right to freedom of expression in Article 19 is limited, these limitations are provided by law and for the purpose of preventing online abuse.
Conclusion
The Bill is compatible with and promotes human rights. To the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.
For a detailed consideration of the human rights implications of the Online Safety Bill 2021, refer to the Statement of Compatibility with Human Rights in the Explanatory Memorandum for the Online Safety Bill 2021.