Increased powers for the Australian eSafety Commissioner will threaten freedom of speech

While recent attempts by the Federal Government to increase its regulatory powers over misinformation have been delayed, it seems clear that it is determined to police free speech through alternative legislative measures.

The Communications Minister Michelle Rowland has announced a statutory review of the Online Safety Act 2021, which will be undertaken by former public servant Delia Rickard. Ms Rickard has been tasked with making independent recommendations to the government.

The government is seeking views from the community about a proposed major expansion of the eSafety Commissioner’s powers to address ‘new and emerging harms’, and in particular to target hate speech, ‘pile-ons’ and deep fakes.

The Terms of Reference for the review provides that it will:

… be a broad-ranging examination of the operation and effectiveness of the Act, including its existing regulatory schemes, penalties and enforcement, and any gaps in the Act. The Review will consider international developments in online safety regulation, including whether the law should be amended to impose a new duty of care on platforms towards their users.

The report is due to the Minister by 31 October 2024.

HRLA client and former Australian Breastfeeding Association counsellor Jasmine Sussex has experienced first-hand the way that government censorship of online speech works in practice.

Jasmine is a passionate and publicly vocal defender of women’s rights and breastfeeding mums. She was subject to censorship after she publicly contended that ‘men cannot breastfeed’ in response to a trans-identifying man’s public declaration to have done so. 

Jasmine received a notice from Twitter advising her that her twitter comments would be withheld in Australia as they had “broken the law”. Twitter also advised that they had been contacted by a “government entity or law enforcement agency” claiming her tweets were unlawful.

In addition to being censored, Jasmine is now facing a complaint of vilification under the Queensland Anti-Discrimination Act from the trans-identifying man in question alleging that Jasmine has “incited hatred, contempt and serious ridicule” by publicly criticising this person’s pro-transgender activism on social media.

HRLA is providing Jasmine with pro-bono legal assistance to oppose this complaint in the Queensland Civil and Administrative Tribunal and to defend her right to stand up for the sex-based rights of women.

While the government’s review will examine an expansion of the eSafety Commissioner’s powers, it is important to note that the Commissioner already has substantial powers under the Online Safety Act 2021 to police online speech and to coerce internet platforms to remove content.

Jasmine’s case is a clear example of the way that such powers can be misused by bureaucrats to silence free debate about transgender ideology.

As Jasmine has said:

I was appalled that it was claimed to be in violation of Australian law to criticise what I and most Australians consider to be a cruel and medically dangerous experiment on newborn babies.

Her disagreement relates to a matter that is clearly in the public interest, on an issue that is highly contested. The government’s direction to remove Jasmine’s tweets indicates that the government agency has taken sides in an ideological debate. 

Freedom of speech is a fundamental right in a democratic society. Australians are entitled to express themselves and hear what others have to say. Expanding the eSafety Commissioner’s powers in relation to online “hate speech” will threaten this freedom and potentially subject online content to subjective assessment by a government bureaucrat to determine whether it is unlawful or harmful.

HRLA will be preparing a submission to the Review. If you are concerned about these developments and would like to have your say, you can submit your views here.