Doorstop with Attorney General Christian Porter

Doorstop with Attorney General Christian Porter
Senate Courtyard, Parliament House, Canberra
12:15PM 4 April 2019

FIFIELD:
The approach of this government to the online environment is that the rules and norms that apply in the physical world should also apply in the online world. It’s why we established the world’s first eSafety Commissioner to be a one-stop shop for advice, education and enforcement. It’s why we legislated the kids cyberbullying take-down regime. It’s why we legislated the take-down regime for the non-consensual sharing of intimate images. And today, we are legislating against the weaponisation of social media. We’re introducing a tough regime against the misuse and abuse of online platforms. Where social media organisations do the wrong thing, there should absolutely be penalties. And under this law there will be. It’s important that we make a very clear statement to the social media organisations because we expect their behaviour to change. Our experience with the kids cyberbullying take-down regime and also with the take-down regime for the non-consensual sharing of intimate images is once you legislate, behaviour changes. That’s what we expect. And that’s what we want. So, the message is clear. The law is in place. We expect behaviour to change. Attorney.

CHRISTIAN PORTER:
Thanks, Mitch. I would just simply say that this is most likely world first in terms of legislating the conduct of social media and online platforms. I make the observation that it appeared to us, as a government that there was a near unanimous view amongst Australians that social media platforms had to take more responsibility for their content; that they could not and should not and the law should prevent them from live streaming or playing acts of the most horrendous violence. And there was an expectation that the Government would move urgently to ensure that such a law existed, which is precisely what we have done today.

QUESTION:
Could you please clarify which individuals at a social media company will be liable for prosecution under this Act?

PORTER:
Well, it depends on the context but if you look at an organisation, for instance like 4chan, which is a posting service, that was actually, as I understand it, created, owned and operated by an individual and if you traced back the origins of a terrible platform like 8chan, again, it’s more than likely that you’ll find individuals who would be responsible for those platforms. So there’s often lines of individual responsibility in the smaller platforms and all of the legal advice, including that from the Commonwealth DPP, is that even with respect to the larger platforms such as Facebook, such as YouTube, that there could well be instances where an individual is so complicit with the reckless availability of abhorrent violent material that they would be individually liable.

QUESTION:
Why did you choose not to exempt mainstream media companies when this bill is specifically designed to crackdown on the multinational tech giants?

PORTER:
Well, mainstream media and new media has a blurred edge. But it is the case that of all the organisations that are represented today, the Government hasn’t had presented to it and can’t conceive of an instance where the responsible mainstream media would live stream or play on the nightly news or live stream on one of their platforms mass murder, right? But nevertheless, mainstream media are now using platforms such as webpages to post footage and the law has to be the same for everyone. But the reality is that organisations that are represented today have never, to the best of our knowledge, done anything like what Facebook did after the Christchurch attacks. But nevertheless, the law has to apply to everyone.

FIFELD:
And also, this is narrowly cast legislation. Its material published by a perpetrator relating to murder, rape, torture, and kidnapping. The legislation also has protections for professional journalists who are undertaking their work as part of news organisations in the public interest. And as a matter of good practice, we will, after the election, commission the Senate Communications Committee to inquire into this area of law and also to look at the role of these platforms as publishers.

QUESTION:
The legislation says that the abhorrent act has to occur in Australia first.

PORTER:
No. With respect to the notification provisions, the abhorrent act, yes, has to occur in Australia, so we don’t expect online platforms to notify us of material that pertains to an event that occurred overseas.

QUESTION:
So how will that have stopped the Christchurch massacre then being streamed live?

PORTER:
Well, because the secondary offence, which is the offence that requires the expeditious removal of material, is any abhorrent violent material that is viewable in Australia.

QUESTION:
What do you mean by [indistinct]? What timeframe is there for companies to take this media down?

PORTER:
Well, what is a reasonable belief, what is expeditious, will always depend on the circumstances, and should one of these matters go to prosecution and filed, that would be a determination for a jury. But using the Christchurch example, I can’t precisely say what would’ve been the point of time at which it would’ve been reasonable for them to understand that this was live-streaming on their site or playable on their site and they should have removed it. But what I can say, and I think every Australian would agree, it was totally unreasonable that it should exist on their site for well over an hour without them taking any action whatsoever, and this law would prevent that and criminalise that and offer the Government an ability to respond where an organisation like Facebook let something live-stream and play for a long period of time on their platform.

QUESTION:
Why have you chosen a Senate committee process to review and not the parliamentary joint committee on intelligence and security?

FIFIELD:
The Senate Communications Committee looks at this area frequently. They are the appropriate form in the parliament to address this.

QUESTION:
Tech giants aren’t great at following our laws at the moment. They regularly break suppression orders and defamation laws. What makes you think that they are actually going to follow these laws?

PORTER:
Well, Mitch might comment on this as well but where we have had world-first regimes like the eSafety commissioner, like a take-down order regime, we have found that there has been behavioural change.

FIFIELD:
In the case of the kids cyberbullying regime, the eSafety commissioner has achieved 100 per cent compliance with the removal of material without having to resort to her legislative powers.

QUESTION:
A number of ISIS recruits have made pleas to come home to Australia with Australian citizenship? Will you be showing them any mercy?

PORTER:
Well, the Prime Minister has been very clear – we are not going to put Australian lives at risk to facilitate the re-entry of people who went to fight against our country and its values.

QUESTION:
The legislation that you mentioned covered accredited journalists. What about whistle-blowers? There is a concern among the Law Council that whistle-blowers who are reporting on overseas crimes or things even within our own borders would be covered under this legislation.

FIFIELD:
It’s important to look at the legislation itself. This is passed to apply to material which is published by the perpetrator, which the perpetrators themselves has captured, but it doesn’t…

QUESTION:
[Talks over] [Indistinct] I just want to clarify if that is [indistinct]…

FIFIELD:
…That’s right. Or an accomplice. Someone who is working with that individual in the commission of their crime. It does not apply to third parties who might be capturing material, such as news organisations or a member of the community.

QUESTION:
But what about whistle-blowers who work within organisations who take [indistinct] work alongside those they may be blowing the whistle blower?

FIFIELD:
Well, you cannot be a whistle-blower who’s actually engaged in a criminal activity, who has engaged in murder, who has engaged in assisting rape, or who is engaged in assisting torture. You are not a whistle-blower; you are an accomplice and you should face the full force of the law.

PORTER:
I just want to say – that example the Law Council has given is ludicrous, and the people you should be asking about the nonsensical nature of that example is the Law Council, but they can’t make sense of it. It’s absurd.

QUESTION:
What circumstances would an individual at Facebook or Twitter, for example, face prosecution? Because before you talked about complicity in the sharing but that’s not language that appears in the legislation. So, how would any individuals at a social media giant like that be prosecuted?

PORTER:
I can re-answer the question for you. Firstly, obviously, there are individuals who very often run on and operate smaller platforms and they’d be directly liable. There are very clear provisions in the Commonwealth Criminal Code that talk about the aiding and abetting of offences and people being a party to an offence, and our advice from the Commonwealth Director of Public Prosecutions is that it’s quite possible, as has been the case previously, that individuals and corporations are so intimately connected to the elements of the offence that they themselves would be personally liable. That is not a particularly novel or radical concept under the criminal law in any Australian jurisdiction.

QUESTION:
What do you say to the tech sector which has voiced concern that these laws coupled with the encryption laws are making it very hard and stifle the innovation [indistinct] and they’re going to be forced to go overseas?

PORTER:
Mitch might also want to comment on this but this is what they said before the cyber bullying requirements and regulations. This is what they said before the eSafety Commissioner. This is what they said before the take down notice. They’re all still here. It’s like Alec Baldwin saying he’s going to leave America every time a Republican’s elected President. It just doesn’t happen based on experience.

FIFIELD:
That’s right. And stopping the cyber bullying of kids, stopping the non-consensual sharing of intimate images, and stopping the live streaming by perpetrators of abhorrent violent material doesn’t stifle innovation. It’s just applying decent community standards through the law that apply in the physical world that should absolutely apply in the online world.

QUESTION:
I think there is a concern that this has been rushed through Parliament – it’s all happened very quickly. Can you guarantee the public there won’t be unintended consequences here?

FIFIELD:
Well the public, quite rightly, demanded that there would be action in this area to stop what we saw happening in the wake of Christchurch. This is what the public demanded. They’re right to demand it. We’re delivering it. We’re moving quickly. This is carefully crafted and narrowly defined to apply to the sort of activity that we saw during and after Christchurch.

QUESTION:
In both your times in Parliament have you ever drafted a piece of legislation this quickly? And why did you need to get it through before the election was called?

PORTER:
Well, what happened after Christchurch was that we saw events which, really, were events that we’d never seen before in terms of the live-streaming and of mass murder, where a terrorist used a social media platform to spread terror and to spread fear and to spread hate. And when we looked at the state of Australian law as to whether or not we would have recourse against the platform that allowed that to happen our answer, unfortunately, was that we did not have such a recourse. And the only way that we can ensure that there is proper responsibility and behaviour from the social media platforms was to have such a law. And that it appears to me and to the Government and to the Prime Minister is not something the Australian people want to wait 18 months for after a Law Reform Commission (review). There are a range of issues that obviously in this space need to be considered on an ongoing basis. But the minimum response that says that it is unlawful for a social media platform to live stream mass murder for 72 minutes seems a very reasonable response. And the idea that the Australian public wanted that response urgently again seemed to us reasonable, and that’s what we did.

QUESTION:
So the Facebook CEO, would the Facebook CEO, Facebook Australia CEO, be potentially liable if this happened again? Or like who, one of those giants, would actually have to face court?

PORTER:
It depends on the circumstances but again, I can re-answer the question: that all the advice to us is that, first of all, there are individuals who are often very deeply connected with individual hosting platforms. And let’s not forget here that when the New Zealand Government asked 8chan to remove this material from its website they effectively told the New Zealand Government to go get stuffed. That’s what 8chan said, individuals at 8chan. So we don’t ever want a situation to arise where you couldn’t actually prosecute those individuals. Secondly, it is a longstanding principle of the criminal law that individuals and corporations might be so connected with the failures that allowed the offence to occur that they themselves would be liable. That of course would depend on the circumstances. But I guess the fundamental point is that Facebook, if they allowed this to happen again in commensurate similar circumstances, potentially face a fine of up to 10 per cent of their turnover. And that ultimately is the type of outcome that is going to cause the behavioural change that we’ve seen in every other area that we’ve regulated or passed laws with respect to.

QUESTION:
This morning, Border Force has said that not a single asylum seeker has gone to Christmas Island. Is that embarrassing for the Government?

PORTER:
Well I think it’s very embarrassing for the people that told us that there was a medical emergency on Manus and Nauru and that people were so sick that they needed to leave those places for medical treatment. I would suggest that the fact is that requiring anyone who got transfer under the Medevac process to go to Christmas Island has and is proving a pretty significant deterrent. I would suggest it needs to be asked of the Member for Wentworth and others: where are these people who were so sick that that legislation had to be taken through without debate in Parliament with a gag order attached to it?

QUESTION:
But in Senate Estimates they said that one person has been transferred since the Medevac Bill passed, they’ve just not be brought to Christmas Island, which says that they’ve been brought to the mainland.

PORTER:
Well look, I’m sorry, I haven’t been watching Senate Estimates today so I can’t comment.

QUESTION:
But one person- do you know if one person has been brought to the mainland?

PORTER:
I don’t.

QUESTION:
On the eSafety Commissioner’s powers, is it only the eSafety Commissioner who decides what is abhorrent, violent material and issue the take down notice, or will they receive advice?

FIFIELD:
The eSafety Commissioner issues a notice to a platform that the material is abhorrent and they are deemed to know from that point.

PORTER:
And it’s not going to take a lot of particular nuanced judgement to work that out. This is footage of rape, murder, torture, or kidnapping. What the eSafety Commissioner requirement is, is a requirement that deems a platform to know when it has been drawn to their attention that material of this type exists on their platform. Determining that the material is of the defined type is not going to be difficult.

QUESTION:
But just as an example, Sky News did show the edited- an edited version of the Christchurch live stream and it took out, what you would say would be abhorrent acts. But it did go through the event, that wouldn’t classify in your mind under this act?

PORTER:
Well, I think that the portion of the Christchurch footage that was preparatory to the actual violence itself is probably able to be played, and it’s a matter that can be placed on news and other platforms. But you’ll see that the definitions of abhorrent violent material relate to the violence.

QUESTION:
Would it cover human rights advocates – putting videos online hoping to draw attention to human rights abuses?

PORTER:
What human right advocate films themselves committing torture, rape, kidnap, or murder? I mean again, these hypotheticals are edging on the bizarre.

QUESTION:
[Talks over] It might be them filming themselves. It’s not if they share …

PORTER:
[Interrupts] Abhorrent, violent material is defined by the fact that it is abhorrently violent, and it emanates from the perpetrator of the violence.

QUESTION:
Getting away from hypotheticals, there are services right now hosting footage of the Christchurch massacre. Could you go after them right now?

PORTER:
Well, it’s quite likely the case that after assent, if any organisation is hosting the abhorrently violent material arising out of Christchurch and doesn’t take reasonable steps to remove it, that they’ll be committing an offence, of course, after assent of the legislation. And it’s another example as to why this legislation is needed, because there are sites and platforms who thumb their nose at governments and actually refuse to do anything about this.

QUESTION:
So should the operators of 8chan 4chan be waiting for a notification from the Australian Government and be awaiting indictment and an extradition request to the nation that they [indistinct] …

PORTER:
Well, those organisations would be well advised to take the material down.

QUESTION:
I can go on Twitter and I can find footage of the clips that Turkish President Erdogan was screening at his rallies that upset the Prime Minister so much of the Christchurch massacre. I could find that on Twitter now, of the Turkish minister showing those clips. Where does that stand in the [indistinct] wonderful [indistinct] …

PORTER:
Well, whether you’re Facebook or Twitter, you should not be playing footage of murder; full stop. This should be a fairly basic thing.

QUESTION:
But they posted the news stories of this murder.

PORTER:
Well again, Twitter should not be showing murder on its platform; just like Channel Seven wouldn’t show murder on its platform, or Channel Nine wouldn’t show murder on its platform. And again, this evidences why this law is necessary, because there are platforms such as YouTube, and Twitter, and Facebook who do not seem to take their responsibility to not show the most abhorrently violent material. Seriously, they have to take this stuff down.

QUESTION:
Has the plan to merge the Family and Federal Circuit Court have been shelved; is that the end of it?

PORTER:
No. It remains our policy. Of course, there’s likely to be an election intervening before we can have the chance to do it again. But it’s enormously disappointing. I mean, this was modest reform, cautious reform. It fixed a problem that has been outstanding for decades in Australia, and everyone agrees on the problem. This was a prudent, cautious, modest solution to that problem; attached to which was significant extra resourcing for family law in Australia. The only people who have lost from this not going through are the families who have to use the Family Court. It is disappointing, but it’s not the end of it.

QUESTION:
How much compromise would you be open to?

PORTER:
Well, what I offered the Crossbench, and there was very significant support on the crossbench – not from Labor, but very significant support on the Crossbench – was a considerable amount of compromise. And again, we’ve been always willing to compromise on this.

Okay, thanks very much.