In October 2021 the Online Hate Prevention Institute provided a submission to the Australian Government’s consultation on the draft Online Safety (Basic Online Safety Expectations) Determination. Today, the new Ministerial Determination was announced and has come into effect.

In our submission we stated:

We believe the Government has correctly set the roles of Government, Social Media platforms, and members of the public but that there is a missing fourth critical stakeholder in online safety. Civil society should be part of the solution, as we have expressed in previous submissions on online safety. The Government has an opportunity, through the Online Safety Determination, to ensure basic standard are met to enable Civil Society to do its part to enhance online safety.

We particularly welcomed S6(2) with says:

The provider of the service will take reasonable steps to proactively minimise the extent to which material or activity on the service is unlawful or harmful.

The Explanatory Memorandum explaims:

‘Unlawful’ is used to refer to material or activity that is not permitted under a Commonwealth Act. For the purposes of this Determination, the term ‘unlawful’ refers to illegal material or activity dealt with under the Act and other unlawful material or activities that may have a negative impact on the online safety of Australians.

We welcomed this is as it makes it clear that there is an obligation to remove / geo-block racist material which is in breach of S18C of the Racial Discrimination Act. We did, however, propose an alternative that went further:

S 6(2) The provider of the service will take reasonable steps to proactively
(a) minimise the presence of material or activity on the service which is unlawful under a law of the
Commonwealth, a State or a Territory and is visible to people in that jurisdiction.
(b) minimise the extent to which material or activity on the service is harmful.

As we explained in our submission this would extend the expectation to cover other forms of content that are unlawful under state / territory law. Religious vilification, for example, is now unlawful in many parts of Australia, but is not covered by federal law. Victoria has been working to extend anti-vilification protections to a wider range of groups.

The Commonwealth’s “post and telegraph power” under Section 51(v) of the Australian Constitution gives the Federal Parliament power to set laws in this space. It could cover the field and allow eSafety (on referral under state laws) to function as the single contact point to ensure compliance with the law in each part of Australia. This would greatly simply processes compared to each jurisdiction setting up its own systems and relationships.

We also drew a distinction between unlawful content which we believe should be removed / geo-blocked, and harmful content where we be believe a wider range of approaches could be considered. We believe the response on unlawful content should be much tighter. We would also interpret harmful differently to the explanatory memorandum, harmful online content not only affects online safety, it can impact real world safety as well. Online safety should be about making an online world that helps keep people safe, not just about making a safe online world.

Overall we welcome this determination and congratulate the Hon Paul Fletcher MP, the Minister for Communications, Urban Infrastructure, Cities and the Arts, but greater engagement with civil society is needed in this space. Greater engagement and a real partnership with the Online Hate Prevention Institute is particularly needed.