We can see that disease with the embrace by the Government and Opposition of the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Bill 2019 (Cth), passed by both chambers of the national legislature without substantive critique after a last-minute introduction just in time for announcement of the election.
Political opportunism and last-minute drafting often results, as it has in this instance, in inept legislation.
The Explanatory Memo states
The Christchurch terrorist attack on 15 March 2019 demonstrated the potential for live streaming and other video sharing platforms to be abused by extremist perpetrators to amplify their messages in the immediate aftermath of these incidents. In that case, the perpetrator streamed the attack in real-time. The video was then widely re-shared across a number of social media platforms.
The Criminal Code Amendment (Sharing of Abhorrent Violent Material) Bill 2019 (Bill) will address significant gaps in Australia’s current criminal laws by ensuring that persons who are internet service providers, or who provide content or hosting services, take timely action in relation to abhorrent violent material that can be accessed using their services. This will ensure that online platforms cannot be exploited and weaponised by perpetrators of violence.
This Bill will make amendments to the Criminal Code Act 1995 to introduce new offences to ensure that internet, hosting or content services are proactively referring abhorrent violent material to law enforcement, and that hosting and content services are expeditiously removing abhorrent violent material that is capable of being accessed within Australia.
To achieve this, the Bill would place obligations on:
- internet service providers, hosting service providers and content service providers to refer the details of abhorrent violent material that records or streams abhorrent violent conduct that has occurred, or is occurring, in Australia to the Australian Federal Police within a reasonable time of becoming aware of the existence of the material, and
- hosting service providers and content services providers to expeditiously remove from, or cease hosting on, their services abhorrent violent material that is reasonably capable of being accessed within Australia.
Abhorrent violent material is audio, visual, or audio-visual material that is recorded or streamed by the perpetrator(s) or their accomplices. Furthermore, it must be material that reasonable persons would regard as being offensive, and is recorded or streamed in the course of:
- engaging in a terrorist act (involving serious physical harm or death, and otherwise within the meaning of section 100.1 of the Criminal Code),
- the murder of another person,
- the attempted murder of another person,
- the torture of another person,
- the rape of another person, or
- the kidnapping involving violence of another person.
The Bill would provide a new power to the eSafety Commissioner to issue a written notice to a provider of a content service or hosting service notifying them that abhorrent violent material can be accessed by or is hosted on their service. The effect of this notice, in relation to the offence for failure to remove or cease hosting, is to:
- put the provider on notice that their service is being used to access specified material
- put the provider on notice that the specified material that can be accessed on their service is abhorrent violent material
- create a presumption for the purpose of any future prosecution that the provider was reckless as to whether the specified material could be accessed from the provider’s service, and
The primary objectives of Schedule 1 to this Bill are to ensure that:
- create a presumption for the purpose of any future prosecution that the provider was reckless as to whether the specified material that could be accessed on their service was abhorrent violent material.
- persons who are internet service providers, or who provide hosting or content services are reporting abhorrent violent material that records or streams abhorrent violent conduct that has occurred or is occurring in Australia to the Australian Federal Police (AFP), and
- persons who provide content services or hosting services are acting expeditiously to remove from or cease hosting abhorrent violent material on their services.
that will apply to persons who provide internet, hosting or content services who fail to refer details of abhorrent violent material that records or streams conduct that has occurred, or is occurring, in Australia to the AFP within a reasonable time after becoming aware of the existence of the material. A maximum penalty of 800 penalty units will attach to these offences. These offences will apply to hosting services and content services irrespective of whether the person provides these services within or outside of Australia.
A defence to these offences is that if there are reasonable grounds to believe the AFP is already aware of the details of the material, the obligation to refer those details will not apply. A defendant would bear the evidential burden to establish this belief.
Schedule 1 will also introduce new offences that will apply to persons that provide content or hosting services who fail to remove or cease hosting abhorrent violent material that is capable of being accessed within Australia. A maximum penalty of 3 years imprisonment or 10,000 penalty units, or both, will attach to these offences where an individual is found guilty. Where a body corporate is found guilty, the maximum penalty that will apply will be the greater of 50,000 penalty units or 10% of the annual turnover of the body corporate.
Defences to these offences will be available in respect of abhorrent violent material that is related to assisting law enforcement, reporting of news and current affairs, public policy advocacy, good faith artistic work, research purposes, court or tribunal proceedings, and the performance by public officials of their duties (and individuals assisting these officials in their duties). These offences will not apply to internet service providers or providers of relevant electronic services such as chat and instant messaging services.Further offences under s 474.34 of the Criminal Code
will deter content service and hosting service providers from failing to take action in relation to abhorrent violent material that can be accessed using, or is hosted on, their services. These offences criminalise failure to expeditiously remove or cease hosting abhorrent violent material from their services. This regime would indirectly limit the nature and volume of content that end-users are able to access and share with each other. This is because content service hosts and content service providers that provide or host content would become more proactive in ensuring they expeditiously remove or ceasing hosting abhorrent violent material. This would engage the rights provided by article 17 [of the The right to freedom from interference in privacy and correspondence in article 17 of the ICCPR] because it may affect the nature and feasibility of correspondence between Australian citizens, albeit only for a narrow and specific type of objectionable material.
The Bill’s objective is to reduce the impact and reach of abhorrent violent material sought by perpetrators who intend to spread their violent and extreme propaganda. The audio and visual content produced by perpetrators has objectionable value as it often constitutes propaganda or recruitment material for further criminal activity, prejudices the dignity the victims and has the potential to cause harm and distress to vulnerable sections of the community. ...
The Bill is proportionate and not arbitrary because it applies a defence in respect of abhorrent violent material, contained in section 474.37. Section 474.37 would not prohibit the sharing of abhorrent violent material or the freedom of expression in all circumstances, instead it would limit how this expression is disseminated. The offences under section 474.34 would not apply if access to abhorrent violent material is necessary to:
- enforce the law
- investigate or monitor compliance with the law
- conduct proceedings in a court or tribunal
- conduct scientific, medical, academic or historical research
- report on news and current affairs in the public interest
- assist public officials in exercising their duties
- advocate for changes to laws, or
The Act identifies the Obligation of internet service providers and internet content hosts, with the Memo stating
- develop, perform, exhibit or distribute, in good faith, artistic work.
The primary objective of Schedule 2 is to ensure that sufficiently high penalties are operating to deter internet services providers and internet content hosts from failing to refer details of child pornography material and child abuse material to the Australian Federal Police.
Schedule 2 contains an amendment to section 474.25 of the Criminal Code it which would increase the maximum penalty that can be imposed for breach of this section from 100 penalty units to 800 penalty units.Abhorrent violent material
is audio, visual, or audio-visual material that records or streams abhorrent violent conduct engaged in by one or more persons where a reasonable person would regard the material as being, in all the circumstances, offensive.Audio, visual, or audio-visual material is addressed as material intended
to capture live-streamed and recorded video footage, live-streamed and recorded audio recordings (which do not need to be accompanied by visual material), as well as photographs including still images taken from video footage.For offensiveness ...
In determining whether material is ‘offensive’ for the purpose of meeting the requirements under the definition of abhorrent violent material, section 473.4 of the Criminal Code should be consulted. Section 473.4 sets out matters to be taken into account in deciding for the purposes of Part 10.6 (which will include the new offences under sections 474.33-34) whether reasonable persons would regard particular material as being in all the circumstances offensive. These include:
- the standards of morality, decency and propriety generally accepted by reasonable adults; and
- the literary, artistic or educational merit (if any) of the material; and
- the general character of the material (including whether it is of a medical, legal or scientific character).
The definition of abhorrent violent material is not intended to capture footage of violent sporting events (for example, boxing), medical procedures, or consensual sexual acts that involve elements of violence.
. Additionally, the material must be produced by a person who is, or by two or more persons each of whom is:
- a person who engaged in the abhorrent violent conduct
- a person who conspired to engage in the abhorrent violent conduct
- a person who aided, abetted, counselled or procured, or was in any way knowingly concerned in, the abhorrent violent conduct, or
- a person who attempted to engage in the abhorrent violent conduct.
. This requirement is intended to ensure that only material recorded or streamed by the perpetrator(s) and their accomplice(s) will be captured by the definition of abhorrent violent material. Material recorded or streamed by other persons, such as victims of the conduct, bystanders who are not complicit in the conduct, or media organisations, will not be considered to be caught by this definition even though such material may record or stream abhorrent violent conduct. Material recorded or streamed by persons who are not the perpetrator(s) or their accomplice(s) will therefore not be captured by the new offences under sections 474.33–474.34.
. In some circumstances it may be difficult to determine whether material recorded or streamed by a third party has been produced by an accomplice or by an innocent bystander. However, the offences in the Bill will only be made out if the prosecution can prove that the person had reasonable grounds to believe that the material had been produced by a perpetrator(s) or their accomplice(s) (in relation to offences under sections 474.33), or that the person was reckless as to whether the material had been produced by a perpetrator(s) or their accomplice(s) (in relation to offences under section 474.34). Therefore, if a person believed on reasonable grounds that the material had not been produced by an accomplice, or the person was not aware that there was a substantial risk that material has been produced by an accomplice, the prosecution would be unlikely to prove this element of the offences.Under a new subsection 474.31(2)
20. New provides that, for the purposes of this section, it is immaterial whether the material has been altered. This subsection operates to ensure that abhorrent violent material material that has been edited into a new form but still includes its original content would continue to be abhorrent violent material. For example, video footage that is abhorrent violent material could be edited in respect of its length, edited to appear in colour or monochrome, or have unrelated images or text superimposed onto the footage. This content would remain abhorrent violent material to the extent it continued to fulfil the definition of abhorrent violent material.A new subsection 474.31(3) provides that it is
immaterial whether the abhorrent violent conduct was engaged in within or outside of Australia. This is consistent with the objective of the Bill in ensuring that content service providers and hosting service providers will proactively remove and cease hosting abhorrent violent material, no matter where the underlying conduct is committed.