One Of The Most Dangerous Laws In Australia; Law Review

Well, if you didn’t think that Australia was authoritarian yet, then after reading this, you sure will now. Under the covers of the summer season, the Federal Parliament’s Online Safety Act 2021, is now in force. It contains some of the most egregious parts of law that I have ever seen and guess what? It was passed by both Houses of Parliament (both House of Representatives and Senate) without any vote taking place.

Now the Act seems to be on the face of it a good piece of legislation to protect young people from abuse online. However, this Act is paired with a bill before the Parliament called the Social Media (Anti-Trolling) Bill 2021. Both acts intend to limit free speech. The Act means that people can be penalised for content they post and the bill if passes that means the social media companies would be coerced into give up the details of their users to face defamation cases or face the cases themselves.

So, whilst this Act doesn’t give the green light to debateable defamation cases, it does give the government (or rather the government’s representative the eSafety Commissioner) full scope to go after people who ‘hurt’ others. Let’s get into the key parts.

What Does the Act Mean For People?

Now I’ll be looking specially about adults because they are the ones who are unnecessarily in this Act and also, the ones who are able to be charged with offenses. The law defines serious harm as “serious physical harm or serious harm to a person’s mental health, whether temporary or permanent” and “serious harm to a person’s mental health includes (a)  serious psychological harm; and (b)  serious distress; but does not include mere ordinary emotional reactions such as those of only distress, grief, fear or anger.”

Now I’m not sure how physical harm is relevant to online activities but I guess that I shouldn’t be so surprised because this whole law is overreach. Anyway, the definitions seem to be fair enough because harm can be mental but obviously it isn’t about emotions.

Now the issue is not the serious harm definition but how it is used. Cyber‑abuse material targeted at an Australian adult is defined as “an ordinary reasonable person would conclude that it is likely that the material was intended to have an effect of causing serious harm to a particular Australian adult” or “an ordinary reasonable person in the position of the Australian adult would regard the material as being, in all the circumstances, menacing, harassing or offensive”.

As you can see here, the intention of the person posting the content is to be judged by an “ordinary reasonable person”. That’s so ill-defined and one of the issues with using that phrase in law. I’d much rather have a concrete standard then something lawyers can debate for hours. And even if the term was defined well, it shouldn’t be used anyway. Why? Because it’s all about what an “ordinary reasonable person” thinks and what the intention of the material was. Now to debunk that.

Intentions Matter

Firstly, the intentions of the person who posted it matters and not what anyone else thinks. You can’t judge what the intentions are but you can judge what the intentions of the other person are. There’s a subtle difference between the two; one is saying what they believe the intention was and the other is saying what they believe the intention of the other person was.

Secondly, content cannot have intentions. Intentions are held by the person who posts such content. Therefore, the paragraph above moot. Let me give an example, if someone posts a video of Nyan Cat. Does that person intend to cause serious harm? We can’t know from the information there because remember that content does not have intentions but people do. What if we know that the target of the post was someone who saw their family murdered whilst Nyan Cat was playing? Would that change things? No. What if the person who posted the content knew that information? Yes, it would change things.

So, as you can see, talking about the intentions of content is irrelevant because content cannot have intentions. The wording is so sloppy and the writers of the Act should be ashamed of themselves. The fact is, there is no proper way this can be enforced because it makes no syntaxial sense to say that content has intentions.

As it stands now in the law, intentions can be redefined to simply mean the purpose of the content. It’s a bit like asking how long a piece of string is. It’s hard to actually answer in some cases and practically irrelevant. Sure, a video of a murder has a clear purpose, to show the murder but what happens when something isn’t so obvious? In any case, it is irrelevant because you can’t prosecute content but you can prosecute people. So it’s like asking what blue smells like to put this clause into law.

Now to be fair, the Act says, as one of a number of factors, that “the literary, artistic or educational merit (if any) of the material” should be considered. But once again, if someone does not deem the material to be such that, then it will be thrown out. This seems to be one of the few indications that the government actually sees that there are people behind the posting of content and not just content because the intentions of people make art valuable; even in such absurd cases as below.

Onement VI

Practicalities

Now it would be all fine and dandy if punishment for breaking such a law resulted in some sort of AVO-like order to not post things about and/or to a certain person. But no, there will be punitive pecuniary punishments; i.e. fines. These punishments are doled out if a person refuses to take down the content. Now the maximum punishment is “500 penalty units” and with one unit being equal to $222, the maximum fine is $111,000. That is a complete unnecessary figure and completely out of proportion.

To add to all this, the powers to enforce this Act are held by the eSafety Commissioner who hears complaints from people. What’s patently obvious is that the unlike the police who are many, the Commissioner is one person; thus, it is clear that the Commissioner can favour certain people since there may be many complaints. Whereas with the police, everyone gets a fair opportunity to report the incident. But as it stands, it seems those with large influence, such as politicians and celebrities, will be able to more easily expedite their complaints and get a result in their favour. This kind of behaviour cements the authoritarianism that exists in Australia.

Conclusion

In summary, this is one of the most dangerous Acts ever implemented in Australia. We should all be troubled by this Act. It’s time to write to your local MPs.

Sources (In order of use)

https://www.legislation.gov.au/Details/C2021A00076

https://www.aph.gov.au/Parliamentary_Business/Hansard/Hansard_Display?bid=chamber/hansardr/f5c9bec8-81e0-4aad-a8c2-c100853201a4/&sid=0000

https://www.aph.gov.au/Parliamentary_Business/Hansard/Hansard_Display?bid=chamber/hansards/1ac4a338-bf68-4608-968c-5e098d2a8f77/&sid=0325

https://www.ag.gov.au/system/files/2021-11/social-media-anti-trolling-bill-2021-exposure-draft.PDF

https://www.youtube.com/watch?v=QH2-TGUlwu4

https://www.thedailybeast.com/barnett-newmans-onement-vi-goes-for-dollar438-million

https://www.legislation.gov.au/Details/F2020N00061

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