Continuing Debate Over Online Child Safety and Cyber Bullying Penalties

Friday 23 May 2014 @ 12.23 p.m. | IP & Media | Legal Research | Trade & Commerce

As recently as 13 May 2013, the Hon Mr Paul Fletcher the Parliamentary Secretary to the Communications Minister (the Parliamentary Secretary), announced by Media Release that the Abbott Government was honouring its election commitment to provide the amount of $10 million in fund to measures to enhance the online safety for children. However, with the funding allocated, the process towards enacting legislation has began and matters such as penalties for cyber bullying remain the subject of debate and controversy.

What the Government has announced

The Federal government has announced in the budget that funding will be allocated over four years for measures outlined in the Federal government's plan to Enhance Online Safety for Children whose key measures include:

  • establishment of a Children’s e-Safety Commissioner (the Commissioner) to take a national leadership role in online safety for children;
  • establishment of an effective complaints system, backed by legislation, to get harmful material down fast from large social media sites;
  • examination of existing Commonwealth legislation to determine whether to create a new, simplified cyber bullying offence;
  • encouragement of mobile phone 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; and
  • creation of a fund for Australian-based research and information campaigns on online safety.

The funding allocated to these policies breaks down as follows according to a recent Press Release by the Parliamentary Secretary's:

  • $7.5 million to assist schools to access accredited online safety programmes;
  • $2.4 million to establish and operate the Office of the Children's e?Safety Commissioner; and
  • $0.1 million to support Australian based research and information campaigns on online safety.

The Federal government claims that its policy responds to "widespread community concern that more should be done to protect Australian children from harmful cyber bullying material and to give them the safest possible online environment". The Commissioner will administer the funding of $7.5 million for online safety programmes in schools and $0.1 million to support Australian based research and information campaigns in online safety while also being responsible for,  "improved co-ordination of the content and messages provided to Australian children, families, schools and child protection agencies".

Consultation and Development Legislation to Follow

The Parliamentary Secretary recently indicated that the Federal government will shortly announce the outcome of public consultation on arrangements for:

  • the Children's e-Safety Commissioner;
  • an effective complaints system, backed by legislation, to get harmful cyber-bullying material targeted at Australian children down fast from large social media sites; and
  •  whether there should be a new, simplified cyber-bullying offence or civil penalty regime.

The Parliamentary Secretary has previously indicated that a final version of the legislation would be put before Parliament by the end of the year.

Sanctions and Penalties

As indicated above, consideration of whether there should be a new, simplified cyber bullying offence or civil penalty regime is still one of the more debated parts of the Federal government policy.

The Parliamentary Secretary is reported in a recent speech to the Youth, Technology and Virtual Communities Conference as saying several parties, including the National Association for Prevention of Child Abuse and Neglect, the Australian Federal Police, and the Law Council of Australia, "preferred civil penalties rather than criminal convictions for cyber bullies" in their submissions.

Submissions to which the Parliamentary Secretary is reported to have also said: "suggested raising awareness about the existing criminal tools available to law enforcement, including section 474.17 of the Commonwealth Criminal Code, which deals with 'using a carriage service to menace, harass or cause offence'".

The reason for favouring a civil penalty regime is explained as resulting from the fact that it is seen as a "more flexible" and "informal mechanism" than the existing law in the area and something allowing a more timely response. There was less support for introducing additional criminal law sanctions for dealing with cyber bullying, the predominant view being that there are already criminal law provisions which would address such conduct.

It should be noted that not all making submissions were on board with the Federal government and internet companies, such as Facebook, Twitter and Google, used their submissions to reject the governments' proposals, pointing out that it would be too cumbersome to remove content deemed harmful to young people.

Early government discussions had indicated the possibility that offenders could be fined, or even jailed for three months, following a similar model adopted in New Zealand. That model suggested legislation should have a broad range of sentencing options for minors, including counselling, restorative justice, and community service.

The debate remains ongoing and the legislation flowing from it will be interesting to review when it becomes available.

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