Senate Environment and Communications Legislation Committee, , 9:20:02 to 9:29:17
The eSafety Commissioner discusses the proposed Digital Duty of Care legislation and the transition from prescriptive codes to a more general safety-by-design obligation for technology platforms.
Topics: Online safety, Law reform, Child safety
Speakers: Senator The Hon Sarah Henderson, Ms Heidi Snell, Ms Julie Inman Grant, Senator Varun Ghosh, Unknown Speaker
Chair, thank you very much. And Commissioner to you and your team, thank you for your attendance. But I also wanted to associate myself with the remarks of the Minister to thank and also to the Chair to thank you very much for your service. You are the world's first e-safety commissioner. You have undertaken an incredibly important role, mainly under our government. Of course, we appointed you in 2016. You were reappointed in 2022. And you have endured a rapidly changing online environment with many additional challenges from when you first undertook this role. Personally, I have really appreciated the many opportunities I've had to engage with you over many years. We've had our good times and bad times, a few ups and downs. But thank you for taking that in the right spirit. You certainly go with the good thanks and much appreciation of the entire parliament. And we will miss you at Senate Estimates. Thank you, Commissioner. Now I do want to start off by asking about the digital duty of care. Bearing in mind that the bill itself is subject to a Senate inquiry. So I would just ask you about, and we obviously I have participated in a number of both a briefing with yourself and also with the department in relation to various aspects of what is proposed. One of the things that has really concerned me, apart from all of the free speech implications, is the removal of the codes and standards. Now that they were removed completely in the exposure draft, and they've now been now proposed they will be removed after 12 months. And I think the reason that I'm concerned about some of the narrative of the government in relation to the digital duty of care is that the codes and standards provide a whole range of important obligations on the platforms to take a whole range of actions, many of which are preventative to prevent, detect, remove some of the most serious online harms. And they cover not just the digital platforms, they cover uh ISPs, internet search engine services, of course, uh messaging features, relevant electronic services, and so a wide range of obligations. Do you uh do you have concerns about the current proposal to remove the online codes and standards after 12 months?
Oh, I think giving this. Can I just we we had this conversation this morning about delving into the substance of the digital duty of care bill because it's before another?
This was not this was not this was a matter that I raised with the department. This is a this goes to the this goes to the concerns, some of which we've already discussed this morning. And so I'm not asking about the operating provisions of the bill. I'm asking about the role that you played as e-safety commissioner in terms of the advice that you gave the government. Uh and so it's within that context.
Okay. So if it within that line, I think that's absolutely fine because that's where we land.
I all I would say is, of course, you know that um you know, actually getting and implementing the codes and standards was a very long process with industry. It took about four years, so they were hard-earned, and they were certainly um appropriate for a period of time, but but already we've seen quite a morphing of the different sectors of the um the uh you know the technology sector developed into eight different um parts and how they're sort of sort of starting to morph. Um so we're using those to the best of our ability, and there is some good specificity. So in our engagements with the department um as they were developing the digital duty of care, our concerns were always primarily with ensuring that there were very specific um obligations placed on the platforms, um and that these were ultimately implementable and enforceable. You know, we understood that you know this is a totally new and sweeping way to um tackle these issues and the foundation of safety by design, which is something that we've been advocating for years and years. Uh I think we've come some way through our discussions, which the department touched on during the day. Um there have been many changes in the exposure draft, and I think we're very comfortable with where we landed. Um Ms. Noel, is there anything you'd want to add here?
I think for I think um from our perspective, thank you. Heidi Snell, General Manager uh regulatory operations. Um it is a change. The codes and standards are prescriptive. Um the duty of care is a more general obligation. However, it is more future-proof because of the generality of that, but it also does provide put significant obligations onto services up and down the tech stack in their obligation to undertake a risk assessment and to have appropriate and effective measures to address the risks that they identify. That means that as you have emerging um harms and they introduce new elements into their service, they're obligated to undertake a risk assessment before they introduce those. At the moment, and I think it is important to understand with the codes and standards, we still have to wait until something happens before we can take action against them. And in fact, with the codes, one of the biggest challenges with the codes is that we have to give them a direction to comply before we can take enforcement action.
That's not quite accurate because the codes and standards also include uh preventative measures that the platforms must take to prevent, detect and remove very seriously unlawful online material.
But for us to establish that they haven't done that, we need to identify that content on their service. The difference with the risk assessment is that if they identify the possibility of that being on their service, they have to also provide specific mitigation measures to deal with that. Whereas at the moment, we would find that we have to wait until certain material, for example, child sexual exploitation material is being posted on a platform or more accurately, let's take the example we have in court where we have to have found pro-terror content on the telegram service, and then we can take them to court for the fact that they don't have appropriate systems and processes in place to have kept that off.
Well, that would be a direct breach of their obligations to detect and remove and prevent seriously unlawful online material, such as child sexual abuse material. I I just pick you up on that because there are very wide-ranging measures which also impose preventative requirements on the platforms. Now, whether you've got your evidentiary burden, I appreciate that. But the characterisation that the current law is just reactive is just simply not the case. Now, I appreciate we're probably there's many more questions I would like to ask you about the digital duty of care. I appreciate we're probably going to get more into the bill if we do so. So I think the appropriate forum to take this up is in the Senate inquiry into the bill. Um I'm with the call at this point. It's just in charge. Can I just ask on notice Commissioner? We are I I would like to seek the comments that you provided the government on both the exposure draft and also on the bill. Uh you might have had various different drafts where you've gone backwards and forwards. If we could get a copy of each of your comments on both versions.
I think I think much of the engagement was oral through workshops and the like, but we will seek out uh those written comments and uh we'll we will table those.
I imagine there's twoing and froing. Mr. Fleming, that must be toing and froing between some. If you could I while there is a time frame for responding to questions on notice, I would be really grateful if they could be provided quickly because then we can constructively do our work in the context of the bill being before our committee. Uh thank you. Thank you. Thanks, Chair. Senator Payman.