On the last Parliamentary sitting day of 2018, the federal government and Opposition combined to rush through highly complex and controversial technology-focused legislation, despite widespread criticisms and concerns from the local sector.
And on the last sitting day of the 45th Parliament, it has happened again.
The government’s new social media laws, which would allow for the finding and jailing of tech executives of companies that do not remove “abhorrent violent material” from their platforms quickly enough, were passed by Parliament on Thursday morning, just hours after the legislation was unveiled for the first time.
It’s hard to avoid comparisons with the so-called AA Bill, the encryption legislation which was passed during the farcical last sitting day of last year. Many fear that the government’s social media laws would also have a negative impact on the Australian tech sector on the world stage, and deliver a series of unintended consequences.
Just like with the encryption legislation, the Labor Party said it holds “serious concerns” with the laws, but opted to vote regardless, assisting the government in rushing the law through in the dying days of the 45 Parliament, with an election looming.
The government unveiled the new laws in the wake of the Christchurch terrorist attack.
The Criminal Code Amendment (Unlawful Showing of Abhorrent Violent Material) Bill 2019 was introduced to the Senate after 9pm on Wednesday night and passed on voices alone just minutes later.
It was then passed by the lower house on Thursday morning after a short debate.
The legislation is modeled on existing offences under the Criminal Code requiring tech companies like Facebook to notify policy if their service is being used to access child pornography.
Under the rules, it will be a criminal offence for these platforms to not remove “abhorrent violent material” quickly enough, as decided by a jury. Punishments for this could be a fine of up to 10 per cent of the offending company’s annual turnover, and a potential jail sentence of three years for the company’s executives.
It would also introduce a new crime for a company to not notify the AFP if abhorrent violent conduct happening in Australia is being broadcast on the platform, with fines of $168,000 for individuals, and $840,000 for corporations.
But tech companies, industry groups, media companies, law groups and the Opposition have argued that the legislation is rushed and could lead to serious unintended consequences, and would not have their desired impact on preventing the spread of offensive content.
Concerns centre on the impact on the reputation of the local tech sector, its effect on smaller local tech companies, and its potential negative impact on journalists.
In a speech to Parliament on Thursday morning, shadow attorney-general Mark Dreyfus reflected many of these concerns and outlined the flaws with the government’s legislation, before confirming the Opposition would be supporting it anyway.
“This bill is clumsy and flawed in many respects, and that is in part because of the government has been too cowardly to hold an adequate number of sitting days before the election this year,” Mr Dreyfus said.
“This is no way to approach lawmaking in this country and the precedent this government has set is atrocious. Not even New Zealand, where the Christchurch atrocity occurred, has attempted to make this change in such a short timeframe.”
Despite Labor having “serious concerns” with the bill, including that it could undermine Australia’s security cooperation with the US, would lead to “proactive surveillance” of internet users, have adverse impacts on whistle-blowers and journalists and couldn’t actually lead to the jailing of tech executives, Mr Dreyfus said the Opposition would not stand in the way of the bill passing.
If elected, Labor would refer the bill to the Parliamentary Joint Committee on Intelligence and Security for review.
“All of these problems have been clearly explained to the government, but these explanations have apparently fallen on deaf ears. This is no way to govern,” he said.
“But in the few days we’ve had this bill, Labor has been listening, and if elected a Shorten Labor government will immediately move to address these and many other problems in this bill.”
Greens MP Adam Bandt, who unsuccessfully moved an amendment to immediately refer the bill to the PJCIS, slammed Labor for its blind support of the new laws.
“When the Labor opposition and shadow attorney-general get up and call the bill clumsy and flawed, and say the process was appalling, you would think that you would then refer the bill to inquiry,” Mr Bandt said.
“The shadow attorney-general just gave a good and eloquent speech about why this bill deserves further scrutiny, but then said that Labor and the government are going to side together to ram this through without us having the opportunity to consult with our stakeholders to determine if there are unintended consequences. This is not the way Parliament should function.”
Labor only received a copy of the legislation at 5pm on Monday, while other senators did not see the bill before voting on it on Wednesday night.
“We’ve got this bill that I have no idea about, no-one has any idea about and we have not seen. This debate needs debate so we don’t make completely stupid decisions,” Liberal-Democratic senator Duncan Spender said.
“It is bad enough when the government forces a vote on a bill that members of the public haven’t had a chance to respond to. But in this instance, even the senators haven’t had a chance to look at it.”
Atlassian co-founder Scott Farquhar spoke out against the bill on Thursday morning, saying it is “flawed and will unnecessarily cost jobs and damage our tech industry”.
“I’m speaking on behalf of everyone in the tech industry in Australia, because this legislation effects every single person that puts user-generated content on the internet, not just the social media giants that it aims to attack,” Mr Farquhar told ABC Radio National.
“Anywhere that allows you to upload an image or video can be counted under this law. You could read this law to say that Gmail and Outlook and email providers are included too. In order for a technology company to police this they need to look at and review every bit of content, which means potentially that Gmail would need to be reading your private emails in order to comply with this law.”
Industry group DIGI, which represents the likes of Google, Facebook, Twitter and Amazon, slammed the government for a complete lack of consultation on the legislation.
“With the vast volumes of content uploaded to the internet every second, this is a highly complex problem that requires discussion with the technology industry, legal experts, the media and civil society to get the solution right – that didn’t happen this week,” DIGI managing director Sunita Bose said in a statement.
“This ‘pass it now, change it later’ approach to legislation, such as we saw with the encryption law, creates immediate uncertainty for Australia’s technology industry,” she said.
“It threatens employees within any company that has user-generated content to be potentially jailed for the misuse of their services – even if they are unaware of it. This is not how legislation should be made in a democracy like Australia.”
The Law Council of Australia also criticised the legislation, labelling it a “knee jerk emotional reaction to a tragic event”.
“I am concerned that this legislation is being thought up on the run without any proper consultation with the companies that will be bound by it and lawyers who will be asked to advise on it,” Law Council president Arthur Moses said in a statement.
“Often bad or ineffective policy is made when rushed through Parliament without proper consultation,” he said.
“The job of our parliamentarians is to approach their task in a mature and considered manner so effective and valid laws are enacted. Parliamentarians should not rush this through, but rather use the time to consult so we get this right.”
Fining companies a percentage of their annual turnover is also “problematic”, and may be unconstitutional if it applies to a firm’s overall turnover rather than just money made in Australia, Mr Moses said.
“It will lead to difficulties with sentencing and mean companies will be punished by reference to their size rather than the seriousness of their breach. That is bad for certainty and bad for business,” he said.
“Such an approach to penalties, if used as a precedent for other areas of government regulation, would have a chilling effect on businesses investing in Australia providing their services in this country,” he said.
“Parliament making social media companies and their executives criminally liable for the live streaming of criminal content is a serious step which needs to be thought through carefully, including what defences will be available.
“This proposed legislation should not absolve government itself taking steps to prevent crimes being live streamed.”