Senate

Explanatory Memorandum

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

GENERAL OUTLINE

1. The Christchurch terrorist attack on 15 March 2019 demonstrated the potential for live streaming and other video sharing platforms to be abused by extremist perpetrators to amplify their messages in the immediate aftermath of these incidents. In that case, the perpetrator streamed the attack in real-time. The video was then widely re-shared across a number of social media platforms.

2. The Criminal Code Amendment (Sharing of Abhorrent Violent Material) Bill 2019 (Bill) will 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 in relation to abhorrent violent material that can be accessed using their services. This will ensure that online platforms cannot be exploited and weaponised by perpetrators of violence.

3. This Bill will make amendments to the Criminal Code Act 1995 to introduce new offences to ensure that internet, hosting or content services are proactively referring abhorrent violent material to law enforcement, and that hosting and content services are expeditiously removing abhorrent violent material that is capable of being accessed within Australia.

4. To achieve this, the Bill would place obligations on:

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internet service providers, hosting service providers and content service providers to refer the details of abhorrent violent material that records or streams abhorrent violent conduct that has occurred, or is occurring, in Australia to the Australian Federal Police within a reasonable time of becoming aware of the existence of the material, and

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hosting service providers and content services providers to expeditiously remove from, or cease hosting on, their services abhorrent violent material that is reasonably capable of being accessed within Australia.

5. Abhorrent violent material is audio, visual, or audio-visual material that is recorded or streamed by the perpetrator(s) or their accomplices. Furthermore, it must be material that reasonable persons would regard as being offensive, and is recorded or streamed in the course of:

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engaging in a terrorist act (involving serious physical harm or death, and otherwise within the meaning of section 100.1 of the Criminal Code),

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the murder of another person,

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the attempted murder of another person,

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the torture of another person,

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the rape of another person, or

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the kidnapping involving violence of another person.

6. The Bill would provide a new power to the eSafety Commissioner to issue a written notice to a provider of a content service or hosting service notifying them that abhorrent violent material can be accessed by or is hosted on their service. The effect of this notice, in relation to the offence for failure to remove or cease hosting, is to:

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put the provider on notice that their service is being used to access specified material

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put the provider on notice that the specified material that can be accessed on their service is abhorrent violent material

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create a presumption for the purpose of any future prosecution that the provider was reckless as to whether the specified material could be accessed from the provider's service, and

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create a presumption for the purpose of any future prosecution that the provider was reckless as to whether the specified material that could be accessed on their service was abhorrent violent material.

Financial Impact Statement

7. The Bill is unlikely to have a significant impact on consolidated revenue.

Regulation Impact Statement

8. The Prime Minister has granted an exemption from the need to complete a Regulatory Impact Statement.