Speech to the Protecting Children & Youth Online Conference 2015

It is a pleasure to join you at this important conference. There are many people in this room who work with great energy and commitment to create a safer online environment for Australian children.

 I have had the pleasure of getting to know a number of you quite well over the past two or three years as we have been developing and implementing the Coalition’s policy to enhance online safety for children.

We are gathering at quite a significant point in time, with key legislation recently passed and the Office of the Children’s e-Safety Commissioner to begin operations later this year. 

In my remarks today, I’d like to start by reminding you what we said we would do in our election policy; look at where we have now got to; and then talk about the road ahead.

What we said we’d do

What we said we would do, in the Coalition’s Policy to Enhance Online Safety for Children which we released during the 2013 election, was based on extensive consultation we carried out in Opposition, after then-opposition leader Tony Abbott established the Coalition Online Safety Working Group  in January 2012 and asked me to chair it.

In our policy, we committed to establish a Children’s e-Safety Commissioner to take a national leadership role in online safety for children – and legislation has now been passed to establish that office.

We promised to establish an effective complaints system, backed by legislation, to get harmful material targeted at Australian children down fast from large social media sites.  Again, legislation to establish such a system has now been passed.

We said we would examine existing Commonwealth legislation to determine whether to create a new, simplified cyber-bullying offence.  This examination was carried out, and a public discussion paper was issued in January 2014.

The feedback we got was fairly clear: most responses argued that such an offence was not required as there were adequate provisions in the existing criminal law, and it would not assist our policy objective of having a rapid, flexible, non-legalistic response to cyberbullying.  For these reasons we concluded that the case for introducing such an offence had not been made out. 

We committed that the Children’s e-Safety Commissioner would work with mobile phone companies and internet service providers to make available software which parents can choose to install on their own devices to protect their children from inappropriate material.

Last year I convened a meeting of the three mobile phone companies plus two other major internet service providers to kick off this work, so that the Commissioner would not be starting from scratch once appointed.   

I am also pleased to note some major commitments in this area in recent months by leading telcos, such as Telstra’s Mobile Protect cyber safety management tool.   This lets parents set internet content controls for a child’s mobile phone. 

In Telstra’s words, ‘with one click, customers can select internet browsing profiles that are tailored for young children and teens that permit some sites, while blocking adult-oriented content.’  This approach of a simple, one-click action that parents can take – making it as easy as possible to apply a set of standard, age-appropriate restrictions – is very much what our online safety policy envisages.

The important work in this area will continue under the leadership of the newly-appointed Commissioner. 

We said there would be increased funding for online safety programmes in schools, and $7.5 million was allocated for this in the 2014 budget. 

We also said there would be $100,000 for research into the use of the internet by children and young people, and this too was allocated in last year’s budget.  Last year we also commissioned significant research work from a consortium of universities, led by the UNSW Social Policy Research Centre, which has been very useful as we have developed our legislative package. 

Finally, there were some commitments that the Children’s e-Safety Commissioner will now be able to take forward, including offering certification of online safety programmes; working with the Education Minister to include a stronger online safety component in the National Safe Schools Framework; and establishing an advice platform for parents.

Where we have got to

Clearly, we set ourselves a pretty ambitious agenda, and we have been working hard over the past eighteen months.  I am very pleased that we have been able to consult on our plans; to draft legislation; and to have it pass the Parliament, in a relatively short time. 

I want to make a couple of comments about where we have got to. First, I want to acknowledge some very important contributions, and secondly to highlight some particular aspects of the legislation which in my view are important.

Some Acknowledgements

So many people have come forward to offer help, and there are a number of people and organisations I want to acknowledge.

Matthew Keeley, Director of the National Children’s and Youth Law Centre, has been a wonderful source of advice, sharing with us the Centre’s rich experience in advising the victims of cyberbullying. 

Martin Cocker and his team at NetSafe in New Zealand have similarly been generous in sharing their experience and insights.

The Alannah and Madeline Foundation, under the leadership of Dr Judith Slocombe, have a track record of successful and innovative programmes in online safety for children and Judith and her colleagues have been of great assistance.

A number of leading experts including Susan McLean of Cyber Safety Solutions, eminent psychologist Dr Michael Carr-Gregg, and Associate Professor Jane Burns of the Young and Well Cooperative Research Centre,  have been extremely helpful.

I have also appreciated the expertise and advice of the Australian Federal Police, particularly Assistant Commissioner Tim Morris. The AFP is involved in many crime prevention and awareness raising initiatives in relation to keeping young people safe online.

I particularly want to acknowledge the large corporate providers of social media services – companies such as Google, Facebook, Microsoft, Twitter and Yahoo7.  All have engaged with government in an open and consultative manner, and freely made available the expertise of their impressive array of subject matter experts.

Let me also make special mention of the bipartisan support this legislation received.  Both Shadow Communications Minister Jason Clare and Shadow Assistant Communications Minister Michelle Rowland engaged very constructively as we developed the legislation. 

In my view the support this legislation received across the political spectrum demonstrates the strong commitment of parliamentarians to keeping Australian children safe.   

Finally, I want to express my thanks to a number of people around Australia: parents, siblings or family members of teenagers who tragically have committed suicide or otherwise been lost as a result of dangers that they have been exposed to online. I am not going to mention names, because in some cases I have been told some intensely personal stories.

But I do want to acknowledge the courage of a number of people who have taken the time to speak to me about the loss that their family has suffered and to share with me some very difficult stories of the bullying that their lost family member was exposed to.

Some Important Aspects of the Legislation

I would now like to comment on three important aspects of the legislation which passed the Parliament in March this year. 

The first is the ‘two tiered rapid removal scheme’ – which is designed to make the regulatory impact of this legislation as light touch as it can possibly be.

Tier 1 of the legislation is voluntary; tier 2 is where the formal regulatory obligations apply.  If it works as we hope, socially responsible companies offering social media services need never find themselves in tier 2.

The starting point is that a large social media service can apply to participate in the regulatory scheme and if its application is accepted it will be included within tier 1.

If the Commissioner receives a complaint about material hosted on a large social media service, and finds that it is indeed cyberbullying material targeted at an Australian child, the Commissioner can issue a notice to the social media service requesting that the material be removed.

Now as a strict legal matter such a notice has no legal effect while a social media service is in tier 1.  Compliance is voluntary.

However, the Commissioner will have the power to recommend that the Minister move the social media service from tier 1 to tier 2 if the service repeatedly fails to remove cyber-bullying material following requests from the Commissioner over a period of 12 months. 

If that happens the large social media service will be subject to legally binding notices – and failure to comply exposes it to large fines.

In turn this means that services are likely to comply with notices they receive – even when in tier 1.

The two-tier scheme in the Act allows for a light touch regulatory scheme in circumstances where the social media service has an effective complaints scheme and it is working well; but it enables the Commissioner to require that cyber-bullying material targeted at an Australian child be removed in circumstances where a social media service does not have an effective and well-resourced complaints system.

End-user notices

The second aspect of the legislation I want to comment on is that the Commissioner has the power to issue an end-user notice to a person who posts cyber-bullying material targeted at an Australian child.

We drew on a number of models in developing this mechanism. One is the process set out in the New Zealand Harmful Digital Communications Bill.

Another is the experience of the National Children’s & Youth Law Centre based at the University of New South Wales. They have found that in many cases a formal written request to cease cyber-bullying behaviour, issued by the centre, resolves the issue.

An end-user notice may require the recipient of the notice to take all reasonable steps to remove the material, refrain from posting further material targeted at the child or apologise for posting the material.

The next steps available to the Commissioner, if the recipient of the notice fails to respond, will include going to court to seek an injunction, or referring the matter to police.

Again, this is intended to be a flexible and light touch tool to respond quickly to cyberbullying.  

The third point I want to highlight is the way the Act defines “cyber-bullying material targeted at an Australian child.”  This is a key concept in the Act.

In developing this definition, we looked carefully at a number of sources.

These have included provisions in other Australian legislation, for example in relation to workplace bullying; the New Zealand Harmful Digital Communications Bill which refers to ‘serious emotional distress’; academic research on the normative definitions of cyber-bullying; the terms of use of a number of the large social media services; and the cyber-bullying policies of state government agencies such as the NSW Department of Education.

There is an important balance to be struck here.  On the one hand we seek to capture the full breadth of cyber-bullying material.  On the other hand we do not want a regulatory scheme which is excessive or heavy handed and which regulates material which does not need to be regulated.

Striking this balance is particularly important given the power conferred on the Commissioner by the Act – to have material removed at very short notice if the Commissioner concludes that it is cyber-bullying material targeted at an Australian child.

In other words, it is important that we do not set the bar too low – but equally it is important that we do not set the bar too high.  Let me make a couple of points about how we have sought to strike this balance.

The wording requires that the material must be likely to have the effect of seriously threatening, intimidating, harassing or humiliating a particular Australian child. The use of the word ‘seriously’ in the Act is intended to guide the Commissioner, and the courts, so that material which is merely minor, trivial or frivolous in nature is not regarded as cyber-bullying.

The definition will be applied in the Commissioner’s exercise of discretionary powers to issue notices. In the exercise of these powers, it is expected that the Commissioner will exercise judgement and common sense, and will act consistently with best practice guidelines and statements issued by the Commissioner.  The legislation gives the Commissioner the power to develop and issue such guidelines.

To take one example, as any parent of teenagers knows, when they communicate online, they may use swear words, or describe a person in terms that appear derogatory – but it may well be that this is simply the normal interaction between friends and acquaintances.  So the mere use of such language, of itself, is not enough to reach a conclusion that the material is cyberbullying. 

Ultimately it will be a judgement for the Commissioner, and there will be many indicators of seriousness in the broader context of the events occurring that may assist the Commissioner to apply the definition, such as the intensity of the language used, the material being posted repeatedly and whether or not the recipient or target of the material is on friendly terms with the person posting the material.

The road ahead

Let me now turn to the road ahead. 

One key milestone has already been reached, with the appointment of Alastair MacGibbon as the Children’s e-Safety Commissioner.

Alastair was with the Australian Federal Police for fifteen years, and was founding Director of the Australian High Tech Crime Centre.  He has also had senior and highly relevant private sector roles, including as Senior Director of Trust, Safety and Customer Support at eBay, and for several years was a Director of the Centre for Internet Safety at the University of Canberra.

I am very pleased that we have been able to fill this critical role with someone of Alastair’s experience and knowledge.

Let me map out the key priorities ahead of Alastair and the government as we ‘operationalise’ our new online safety regime.

First, we need to get the Office of the e-Safety Commissioner up and running.  This includes such important tasks as:

• Moving in resources from other parts of the public service, particularly the Department of  Communications and ACMA
• The IT work to develop the complaints system the Commissioner will use including the web based front end
• Developing the processes the Commissioner will use in issuing, and enforcing, the two kinds of notices – social media service notices and end user notices.
• Accepting applications from social media services to participate under tier 1 of the legislation.

All of this is a precursor to being able to announce that the Children’s e-Safety Commissioner is up and running and ready to take complaints.  I hope we will reach that point in the second half of this year, and well before the end of the year – but I am going to allow Alastair MacGibbon a little more time in his new job before requiring him to commit to a specific date!

Second, the Commissioner is charged with achieving improved coordination of the content and messages provided to Australian children and those charged with their welfare regarding online safety.  Existing resources such as the ‘Cyber Safety Help Button’, the Easy Guide to Socialising Online, Budd:e and ACMA’s well-known programmes such as Cybersmart, Be Deadly Online and others, need to be brought together form a coordinated set of messages.

Thirdly, I expect to see the Commissioner with an increasing presence in the media, providing advice and comment about how parents and schools can act to keep children within their care safe online.

Fourth, there is a lot of work to do in engaging with stakeholders, both domestically and internationally.  This Office is charged with taking a national leadership role in relation to online safety for children – and that will mean interacting with many different organisations. I expect the Commissioner will need to:

• Develop protocols about how the Office will interoperate with state and federal police, and with state education departments and schools
• Develop efficient working relationships with large social media services
• Start to build relationships with smaller social media services, typically based overseas, which are not formally subject to the Commissioner’s power to issue notices - we want the Commissioner to establish these relationships with a view to potential informal resolution of complaints where that is possible.

Finally, there are some specific items of work assigned to the Commissioner under our policy.  This includes

• Working with mobile phone companies and internet service providers, to encourage them to make available software which parents can choose to install on their own devices to protect their children from inappropriate material.
• Accrediting and evaluating online safety educational programmes. 
• Establishing an advice platform for parents.

Conclusion

Let me conclude with the observation that there has been widespread support for the measures the Abbott Government is taking to enhance online safety for children.

With the legislative frame work now in place, we are now well advanced towards getting the office of the Children’s e-Safety Commissioner up and running. There is a lot to do – and to some extent we are in uncharted territory.  But I have been very encouraged by the goodwill of many stakeholders.

Over coming months we will announce that the office of the Children’s e-Safety Commissioner is open for business and taking complaints, and you will start to hear a lot more from Alastair MacGibbon as he takes a national leadership role in online safety for Australian children.

Thank you to everyone in this room for your interest and support to date.  The Government looks forward to working with you towards the widely shared objective of making the internet as safe a place as it can possibly be for Australian children.