Extremism

Chapter Seven of the Senate Legal and Constitutional Affairs Committee report Right Wing Extremist Movements In Australia states 

7.1 Australia is a healthy and vibrant democracy. Freedom of speech is fundamental to Australia’s values. Political views become unacceptable when individuals or groups use fear, terror, or violence to further or achieve ideological aims. Ashift from peaceful political engagement to the promotion, or use, of violence is incompatible with liberal democracy. The threat or use of violence against specific groups of people is an attack against our shared values. Violent extremism must not be tolerated in Australia. 

Defining extremism 

7.2 It is challenging to precisely define right wing extremism. A wide range of defining characteristics were provided to the committee. This included hostility towards minority groups, liberal democracy, a pluralistic society, and equality. 

7.3 Some right wing extremists condone the threat or use of violence to further their goals or defend their position in what they see as a decaying social order. They justify violence to advance their extreme ideology. 

7.4Australian intelligence and law enforcement agencies explained that it is not helpful to categorise extremism according to a binary left-right conceptualisation of political ideologies. Those agencies reported that extremists increasingly adopt hybrid ideologies that do not fit neatly on the political spectrum. 

7.5 Australian intelligence and law enforcement agencies have developed two broad categories of politically motivated violence that are further divided into more specific sub-‍categories. Those broad categories are: religiously motivated violent extremism; and ideologically motivated violent extremism. 

7.6 Ideologically motivated violent extremism is further divided into a range of sub-‍categories including: nationalist and racist violent extremism; anarchist and revolutionary violent extremism; and specific issue violent extremism. 

7.7 For the purposes of this inquiry, much of the evidence received by the committee related to individuals and groups who fall within the category of nationalist and racist violent extremism, including neo-Nazis and white supremacist groups. 

Nature and extent of extremism in Australia 

7.8 There is a long history of extremism in Australia. The views of Australian extremist movements reflect the sociopolitical context of the time and evolve according to that context. 

7.9 Ideologically motivated violent extremism is rising globally, and Australia is not immune to that trend. Disturbing evidence was received by the committee of communication between extremists based elsewhere in the world and those based in Australia, often in the online environment. 

7.10 Australian extremists have built links with international movements that reflect their ideological position. They have developed these links to create a shared community that can provide ideological, discursive, financial, and organisational support. 

7.11 Extremists opportunistically co-opt elements of mainstream culture to give their movements and ideological views greater credibility, to appeal to a wider audience, and to lure people into their extreme world view. Radicalised individuals can be encouraged to consider, or even commit, violent acts. 

7.12 The internet facilitates the rapid sharing of this culture and the creation of a globalised extremist movement. For some individuals, joining a large and active community can satisfy an unmet need for social connection. 

7.13 For example, the committee learned of the transnational so called active club network, which is used by extremists to build a community on shared principles. Those communities are designed to appear innocuous to outside observers as well as law enforcement and intelligence agencies. 

7.14 Active clubs are usually decentralised and are only loosely connected to each other. To outside observers they appear to focus on brotherhood and physical fitness. However, they may provide participants with an introduction to extremist ideologies and promote an extreme ideology. 

7.15It is noted that the Australian Security Intelligence Organisation (ASIO) reported that it is aware of the active club model and, at the time of giving evidence to the committee, it had assessed that it presents a low risk of politically motivated violence. 

7.16Concerningly, in August 2024, during this inquiry, ASIO raised the terrorism threat level to PROBABLE. There is a greater threat of people radicalising and using violence to further their ideological cause. 

7.17 As at November 2024, there have been nine attacks, disruptions or suspected terrorist incidents in Australia. In ASIO's assessment, most of those incidents were motivated by nationalist and racist ideologies or a hybrid of ideologies. All those incidents involved lone actors or small groups and low-capability weapons. 

7.18 It is deeply concerning that law enforcement and intelligence agencies reported that many radicalised individuals the subject of their investigations are young people. TheAustralian Federal Police informed the committee that it has commenced investigations and conducted operational activity against a number of people under the age of 16, with the youngest person being 11 years old. 

Mainstreaming of extremist ideas 

7.19 The committee received evidence to suggest that extremists aim to make their ideas and ideologies more politically and culturally accessible and acceptable. They do that through the spread of propaganda both in physical spaces and on widely used online platforms. 

7.20 Mainstream online platforms can act as gateways to more radical or extremist content hosted elsewhere online. 

7.21 Some extremists overtly pursue radical social change using violence or through the distribution of vile propaganda material intended to vilify and instil fear in minority groups. Others adopt more nuanced tactical approaches, distorting and manipulating mainstream political issues to lure people, including young Australians, into their extreme ideological domain. 

The threat posed by extremism 

7.22 Extremist movements pose a threat to Australian society and Australian values. Certain communities and groups of Australians are at particular risk. Thecommittee received evidence that highlighted how these Australians are subjected to dehumanising propaganda and targeted by extremists. 

7.23 A range of communities were identified as being at particular risk from extremist actors. Those communities include: First Nations peoples; culturally diverse communities; religious communities; women; migrants; LGBTQIA+ people; and young people. 

7.24 Australians who belong to minority groups reported the feeling of alienation and exclusion associated with being targeted by extremists. Their evidence demonstrated that even non-violent actions can have severe consequences for their sense of belonging and participation in society. 

7.25 Nationalist and racist violent extremism is incompatible with Australian democracy. It is anathema to Australian values. 

Radicalisation 

7.26 The radicalisation process can be complex and idiosyncratic. There are a range of factors that could contribute to someone becoming susceptible to radicalisation. 

7.27 Those factors include: social isolation; a real or perceived loss of status or privilege; economic insecurity; a sense of marginalisation; 

7.28 Several inquiry participants cautioned against a simplistic approach to addressing radicalisation and violence. They warned that there is no straightforward 'conveyor belt' that carries individuals from exposure to extremist ideas, to radicalisation, to committing violent acts. 

7.29 The Australian Institute of Criminology identified three broad risk factors that contribute to radicalisation: sociodemographic characteristics, such as being male, young, unemployed or underemployed; psychological characteristics, such as low self-control, personal grievance, certain mental health conditions; and contextual characteristics, such as criminal history or associations with other radicalised persons. 

Measures to address extremism 

7.30 Throughout the inquiry, the committee heard that the criminalisation of extremist behaviour is unlikely to fully address the threat of violence and reduce the risk posed to the wider community. 

7.31 Some inquiry participants recommended that the response to extremism should primarily focus on addressing the potential for extremists to resort to violence and not on the ideology itself. People should be free to hold extreme ideas. However, they should be strongly deterred from using violence in furtherance of those ideas. 

7.32 Other inquiry participants suggested that a holistic approach is more appropriate. That approach would include providing resources that support civic engagement, strengthen civic institutions, and provide tools that weaken the appeal of extremist ideologies. 

7.33 Inquiry participants recommended that governments focus on: community outreach and engagement programs; deradicalisation initiatives; education programs that foster critical thinking skills, improve knowledge of civics, and instil a greater sense of empathy; and antiracism programs.  

Community outreach and engagement programs 

7.34 Civil society was recognised as an integral part of any response to extremism. Community organisations are often best placed to respond to extremism, asindividuals who belong to those communities often view those organisations as having greater credibility. The family also plays an important role. The committee received evidence regarding the effectiveness of involving parents in deradicalisation programmes. 

7.35 While government can provide assistance to community organisations, this does not necessarily provide a solution to the issue. Some individuals may mistrust government and government-led initiatives. 

7.36 Notwithstanding this, it was suggested that civil society organisations should be broadly supported so that they are able to continue to meet the social needs of individuals who may be drawn to radical ideologies. Civil society organisations provide individuals with meaning, connectedness, respect, and recognition. If they are not able to provide those outcomes, some individuals may turn to other sources and thereby become more susceptible to radicalisation. 

Deradicalisation initiatives 

7.37 The committee received evidence highlighting the importance of deradicalisation programs in countering violent extremism. 

7.38 A distinction was drawn between disengagement and deradicalisation. Disengagement refers to the disavowal of violence in the pursuit of an extreme ideology, while deradicalisation is a complete abandonment of a radical ideology. Individuals who have disengaged may still hold extreme beliefs but do not condone violence in the pursuit of that ideology. 

7.39 Violent extremists are often driven by emotion. Effective deradicalisation programmes may seek to engage people who have been radicalised on an emotional level to properly understand the factors in their lives that have motivated them to view violence as an appropriate means to further their ideological position. 

7.40 As individuals adopt extremist ideologies for idiosyncratic reasons, deradicalisation programs should be tailored to the specific needs of the individual. 

7.41 That support may require access to a multidisciplinary team of professionals depending on the unique needs of the individual. In some cases, it might also be appropriate to provide radicalised individuals with a mentor to help guide them on the path to rehabilitation. 

7.42 Some organisations with experience in providing deradicalisation programs suggested that former extremists who have been deradicalized may assist through the process. Their personal insights into extremism and radicalisation may be of particular benefit in some cases. 

7.43 The committee understands that deradicalisation and countering violent extremism initiatives require continuous evaluation and refinement to ensure that they are fit-for-purpose and responsive to the evolving threat environment. 

Recommendation 1 

7.44 The committee recommends that the Australian government undertakes periodic evaluation of Australian deradicalisation and countering violent extremism programs. That evaluation should involve experts engaged in those programs, law enforcement and intelligence agencies, and organisations that research countering violent extremism and deradicalisation. Any such periodic review should draw upon the experience both in Australia and overseas in other liberal democracies. Education and youth engagement programs 7.45Education was repeatedly highlighted as an effective tool in reducing the appeal of extremist ideology and weakening the propaganda disseminated by extremists. 

7.46 Instilling empathy for others was identified as an important facet of education. Empathy helps individuals better understand the perspectives of others and avoid the adoption of hateful ideologies. 

7.47 Several inquiry participants commented that the increased use of online platforms required a new approach to, and focus on media literacy, and critical thinking skills. 

7.48 Young people are at particular risk of developing links with extremist movements, as extremists often tailor their messages to appeal to young people. 

7.49 Young people are often at a stage of their life where they are testing their sense of self and developing their unique identity. They may be in positions of vulnerability and susceptible to insidious targeting from those purporting to provide social connection. Sometimes extremists position themselves to meet those psychological needs and to draw young people into the thrall of their extreme and hateful ideology. 

Recommendation 2 

7.50 The committee recommends that the Australian government develops a national framework for engaging with young people to deter them from radical extremism. That framework should provide best practice guidance to the states and territories and the broader civic community on how to engage with young people to: assist them in identifying harmful ideologies promoting violent extremism; deter them from adopting harmful ideologies promoting violent extremism; and provide them with the means to engage with the wider community in a socially positive way. 

The online environment 

7.51 The committee heard evidence in relation to the difference between ‘in real life’ and online extremism. The anonymity of the online environment is conducive to the sharing of violent rhetoric and harassment of individuals belonging to minority groups. Some people feel comfortable to say things online that they would never consider communicating in public. 

7.52 Some individuals find social fulfilment in online communities. They can meet a strong psychological need to feel part of a bigger movement. In the vast majority of cases, many of those communities contribute positively to wider society and perform a valuable social role. However, violent extremists may prey upon the psychological need of vulnerable people to perpetuate hate and promote their destructive cause. 

7.53 The online environment is where people are most likely to be exposed to fringe ideas and extreme ideologies. Individuals are likely to be exposed to that material even if they are not actively seeking it. 

7.54 Extremists are drawn to the internet not only for the anonymity, but also for the low barriers to access and its global reach. The internet provides them with a vehicle to recruit, radicalise, and inspire new adherents or reinforce the beliefs of other extremists. 

7.55 Efforts to remove offensive or objectionable content from the internet can be difficult. The committee received evidence that video footage of the despicable Christchurch terrorist attack and the perpetrator’s twisted manifesto continue to circulate online despite the New Zealand Chief Censor classifying it as objectionable content that is illegal to possess or distribute. 

7.56 It is clear that offensive, objectionable, and harmful material is likely to continue to circulate online despite efforts to regulate the online environment and remove that material. 

7.57 The Office of the eSafety Commissioner stated that it had not conducted research into the presence of ideologically motivated violent extremism online. It has conducted research into online hate, including in relation to children and young people’s experiences of hate on online gaming platforms. 

Recommendation 3 

7.58 The committee recommends that the Australian government conducts research into violent extremism in the online environment, including on: social media platforms; gaming platforms; and gaming-adjacent platforms. That research should examine how those platforms may be used by extremist actors to spread propaganda and recruit members, particularly in relation to young people. 

Social media platforms 

7.59 Social media platforms use algorithms to deliver content to their users. Those algorithms often prioritise similar material to the same user. Hence, there can be a compounding effect produced by the continual receipt by a user of emotive, shocking, and salient content, which can include extreme material. 

7.60 Depending on how individual users of those platforms engage with that content, over time they can find themselves presented with a larger volume of similar content. 

7.61 Extremists often use mainstream social media platforms as an initial point of contact with potential recruits, including vulnerable young people. If individuals engage with extremist content in a favourable way on mainstream platforms, they can be invited to closed sites where plans for violence can be discussed or promoted. 

7.62 In relation to the use of algorithms for content filtering on social media platforms, the committee heard that social media companies have in many instances reduced the level of transparency around how their platforms operate. 

7.63 The Christchurch Call, to which many social media companies are signatories, called for greater transparency around how those companies operate and the measures they have in place to regulate their platforms. The Office of the eSafety Commissioner told the committee that no social media company operating in Australia is adequately meeting its expectations under the Christchurch Call. 

7.64 The committee was told that independent researchers are not able to access the social media monitoring tools that were once available to them. Social media companies have discontinued the use of those tools, which make it difficult, if not impossible, for their efforts to enforce terms of service to be assessed by outside observers. The eSafety Commissioner indicated that the discontinuation of those tools has decreased public transparency and limited her office’s ability to monitor the presence of hate speech, abuse, disinformation, and extremist content on social media platforms. 

Recommendation 4 

7.65 The committee recommends that the Office of the eSafety Commissioner engages with stakeholders in relation to the development of best practice guidelines in relation to transparent and independent assurance measures to verify that social media platforms are enforcing terms of service to exclude harmful extremist content. Encrypted communication applications 

7.66 Online anonymity was raised as a major concern during the inquiry, particularly by law enforcement and intelligence agencies. The widespread use of encrypted communication applications allows violent extremists to conceal their identities and hide their communication from law enforcement and intelligence agencies. 

7.67 ASIO reported that virtually all of its priority counter-terrorism and counter-espionage investigations are frustrated by the use of encryption technology. 

7.68 While encrypted communication platforms may be used for nefarious ends, it is acknowledged that they can also have a socially beneficial role. Those platforms have been used to uncover information that has been suppressed by authoritarian governments and in investigations into corrupt or criminal practices by individuals and companies. 

7.69 Encrypted communications are integral to the proper functioning of the internet and play an important role in public transparency. Encryption protects privacy and assists in the investigation of wrongdoing. At the same time, encrypted communication technologies are used by violent extremist actors to conceal their activities from law enforcement and intelligence agencies. 

7.70 Law enforcement and intelligence agencies should be permitted access to encrypted communications in very specific cases that involve well-founded concerns for national security and where such access is regulated by the judicial system through the issue of warrants. That access is integral to those agencies being able to conduct their very important work that keeps Australians safe. As the extremist threat is globalised, Australian law enforcement and intelligence agencies are increasingly expected to be able to provide operational intelligence to their foreign counterparts. To ensure that violent extremism can be combatted wherever and whenever it emerges, it is vital that our law enforcement and intelligence agencies are equipped with the tools they need to effectively monitor and respond to national security threats, including those posed by extremists. 

Recommendation 5 

7.71 The committee recommends the Australian government considers introducing legislation that would enable Australian law enforcement and intelligence agencies to access encrypted communications if there is a well-‍founded threat to national security and a warrant has been issued by a judicial officer to access those communications. 

National hate crimes database 

7.72 Some participants in the inquiry advocated for the establishment of a national database to better track hate crimes. There are currently private organisations which are performing this invaluable civic function. It was also highlighted that there is no nationally consistent definition of what constitutes a hate crime in Australia, which can frustrate responses from law enforcement and human rights commissions. 

7.73 The lack of a nationally consistent understanding of what constitutes a hate crime has resulted in a reluctance to report those crimes and incomplete data about the extent of the problem. 

7.74 A nationally consistent approach to what constitutes a hate crime would facilitate a nationally consistent reporting and data collecting system. That system would: provide quantitative evidence of the efficacy of legislative measures that address hate and violence against targeted communities; assist law enforcement agencies in evaluating the effectiveness of their policing and education and training programs; and assist human rights commissions in developing advocacy programs and providing victim support programs. 

Recommendation 6 

7.75 The committee recommends the Australian government adopts a nationally consistent definition of what constitutes a hate crime and consider establishing a national hate crimes database.  

7.76 The committee recommends its finding and conclusions to the Senate.

Protests

The recommendations in the Hodgkinson External Review Report for the University of Sydney Senate, commissioned after protests mid-year, are as follows. The University has resolved to accept the recommendationsin principle. 

• The prohibition on encampments as a form of protest on any University campus should be maintained as part of the current review of the Campus Access Policy. 
• The prohibition against any form of protest within a building on the University campus, and the impeding of access to and exit from any building by protest, be maintained following the review of the Campus Access Policy. 
• The University prohibit any student from addressing those present in a lecture, seminar or tutorial prior to the commencement of the lecture, seminar or tutorial on any subject matter. A breach of the prohibition may be considered misconduct. 
• The University should hold Organisations responsible if posters identifying them or an event which they are involved in are put up on campus in breach of the Advertising on Campus Policy. 
• That the University develop a range of sanctions including the withholding of funding to an Organisation which can be imposed on an Organisation found to be in breach of University policy. 
• Where an Organisation is repeatedly acting in breach of University policy, consideration should be given to precluding its office and position holders (or some of them) from being eligible to hold an office in that or any other Organisation receiving University funding. 
• The University should continue to support its review of its complaints procedures with a view to a complete overhaul and simplifying every aspect of it. The review of its complaints procedures should consider establishing a single central office to receive and process all complaints. 
• The University should strengthen existing mechanisms for alternative dispute resolution processes, such as mediation, as part of its review of the complaints procedures. Complainants should be advised, where appropriate, that alternative dispute resolution is an option available to them. 
• The University should publish a regular report to the Senate containing the number of complaints received, the nature of the complaints, the number of complaints resolved since the last report and the timeframe for the resolution of outstanding complaints. The information contained in the report should be presented in such a way that it does not identify the individuals mentioned in the complaints. 
• The University should publish a public report that identifies the range of penalties imposed in matters where a breach of University policy has been substantiated. 
• The University should amend its policies and procedures to make clear that each person utilising a word or phrase is responsible at the time the word or phrase is used to identify to the audience the context in which it is used. (New Civility Rule) 
• A failure to conduct a lecture, seminar, tutorial or a meeting which takes place within any of the University’s facilities in accordance with the New Civility Rule should be recognised as misconduct and treated accordingly. 
• The University’s policies be amended to make clear that Organisations are responsible for conducting all meetings held by them using University facilities in compliance with the Civility Principles. Where an Organisation breaches this requirement, it will be liable to sanction for breach of the University’s policy. 
• The University policies should be amended to require Organisations, when conducting a meeting using University facilities, to comply with the University’s Civility Principles. 
• In order to hold an office or position within an Organisation the persons holding that office or in that position must have completed the Engaging with Civility module. 
• Where an Organisation permits a person to hold an office or act in a position, and that person has not completed the Engaging with Civility module, both the Organisation and individual should be held accountable. Where a person holds an office or occupies a position without completing the Engaging with Civility module, the person's breach of the policy would amount to misconduct. 
• An Organisation should be held responsible for a breach of the policy where it permits a person who has not completed the Engaging with Civility module to hold an office or occupy a position and subject to sanction which could include the withdrawal of their funding in whole or in part. 
• The policy review presently being undertaken and the Policy Working Group should be supported with a view to achieving a review of all of the University’s policies and the simplification of them. 
• The University should approach both the NSW Police and the Federal Police with a view to entering into with them formal protocols which set out how they can assist the University if the need arises. 
• That attaching banners to the footbridges be prohibited.

Nannas and Implied Freedom of Political Communication

In Kvelde v State of New South Wales [2023] NSWSC 1560 Walton J has found that the Roads and Crimes Legislation Amendment Act 2022 (NSW) impermissibly burdens the implied freedom of political communication, in this instance regarding protest activity by the 'Knitting Nannas'. 

The Court states 

(1) The Court declares that subsection 214A(1)(d) of the Crimes Act 1900 (NSW) is invalid because the provision impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution. 

(2) The Court declares that subsection 214A(1)(c) of the Crimes Act 1900 (NSW), to the extent that the paragraph makes it an offence for persons engaged in the conduct specified in the paragraph to cause part of the major facility to be closed, is invalid because the provision, to that extent, impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution. 

It notes

 On 30 March 2022, the Roads and Crimes Legislation Amendment Bill 2022 (NSW) was passed in the NSW Legislative Assembly. The Roads and Crimes Legislation Amendment Act 2022 (NSW) (“Amendment Act”) commenced at the beginning of 1 April 2022 less than 30 hours after the Bill was introduced for the first time in NSW Parliament. The Amendment Act inserted, inter alia, a new Part 4AF titled “Major Facilities”, which consisted of ss 214A and 214B, into the Crimes Act. Section 214A(1) provides as follows: 

214A Damage or disruption to major facility 

(1) A person must not enter, remain on or near, climb, jump from or otherwise trespass on or block entry to any part of a major facility if that conduct— (a) causes damage to the major facility, or (b) seriously disrupts or obstructs persons attempting to use the major facility, or (c) causes the major facility, or part of the major facility, to be closed, or (d) causes persons attempting to use the major facility to be redirected. 

Maximum penalty—200 penalty units or imprisonment for 2 years, or both. 

The Amendment Act amended Pt 9 Div 7 of the Roads Act, including by expanding its application to major bridges, tunnels, or roads. The Roads Amendment (Major Bridges and Tunnels) Regulation 2022 (NSW) amended cl 48A to its present form to include the classification of a main road, highway, freeway and tollway in Pt 5 Div 1 of the Roads Act. 

On 12 October 2022, Ms Helen Kvelde and Ms Dominque Jacobs (the plaintiffs), sought declarations that s 214A of the Crimes Act 1900 (NSW) (“Crimes Act”) (“the impugned law or provision”) and cl 48A(1) of the Roads Regulation 2018 (NSW) (“Roads Regulation”) are invalid. The State of New South Wales (the State) opposed the relief sought. 

The plaintiffs both had a history of engaging in protest actions as part of the Knitting Nannas group, including protesting on or near roads, train stations and ports about environmental and climate change issues. Unless constrained by the impugned provisions, the plaintiffs intend to engage in conduct which it proscribes. They have, therefore, an interest in knowing whether they are required to observe the law. The Court held that the plaintiffs do not merely have strong political beliefs but rather also have a real and special interest in the validity of the impugned provisions, which have affected and will continue to affect, their ability to communicate their political beliefs through protest actions. 

The principal issues for the Court were: 

1. Whether s 214A of the Crimes Act is invalid because it infringes upon the implied freedom of political communication (“the implied freedom”) and thus, is beyond the power of the Parliament of New South Wales; and 

2. Whether cl 48A(1) of the Roads Regulation is invalid because it is beyond the scope of the regulation-making power contained in the Roads Act 1993 (NSW) (“Roads Act”). 

The Court held: As to s 214A of the Crimes Act 

1. Subsection 214A(1)(c), so far as the provision concerns the closure of part of a major facility and subs 214A(1)(d) impermissibly infringe the implied freedom of political communication. 

2. Environmental protests do constitute political communication on which the efficacy of electoral accountability for the exercise of legislative and executive power within the constitutionally proscribed national system of representative and responsible government depends. The nature of the burden is demonstrated by the impugned provisions directly targeting protest activities and is not eliminated or reduced to the point of insignificance by subss 214A(4), (5) or (6). 

3. The relevant burden is the incremental effect of the impugned law on the ability of a person to engage in a communication which the law may already validly prohibit. The impugned provisions in this case were found to restrict the implied freedom beyond valid existing laws, thereby constituting an incremental burden on the ability of persons to engage in political communications, such as environmental issues, which are capable of having a bearing on electoral choice. 

4. The State contended the implied freedom in this matter was “slight” and “so slight as to be inconsequential.” The submission conveyed that in those circumstances the first question should be answered in the negative. Having regard to the relevant authorities that proposition needs to be approached with considerable caution. The correct assessment is whether the impugned law has a real effect on the burden. It is not appropriate to examine the degree of the restriction effected by the provision in considering the first question. It cannot be a quantitative assessment. Thus, the inquiry is as to the character of the burden and whether there is an effective burden in qualitative terms. 

5. Hence, subs 214A(1)(c) (as to partial closure of a major facility) and subs 214A(1)(d) effectively burden the implied freedom in their terms, operation, and effect and must be justified. 

6. The purpose of the impugned provisions is legitimate in its purpose. 

7. The impugned provisions are capable of preventing serious disruption or obstruction and therefore, the impugned provisions were found to have a rational connection to the purpose of deterring disruption and therefore suitable for the legitimate purpose. It is unclear on the authorities whether the test of capability might properly be conditioned by a requirement that there needs to exist a real, substantial, or direct connection to the purpose. However, the Court held that the test is no more demanding than that the law is simply capable of realising the purpose of the law. 

8. The impugned provisions have failed at the stage of ‘reasonable necessity’. The second alternative means (or a law of that kind) advanced by the plaintiffs may be reasonably expected to have imposed a significantly lesser burden upon the implied freedom and still achieved Parliament’s purpose to the same or a similar effect. 

9. The effect of the impugned provisions on the implied freedom significant outweighs benefit sought to be achieved by more effectively deterring any conduct that may disrupt major facilities themselves and hence, s 214A(1) is not adequate in its balance. 

As to cl 48A(1) of the Roads Regulation 

1. The challenge to the validity of the Regulation (cl 48A(1)(a) and (f) must fail. Clause 48A(1)(a) does not conflate two concepts which the legislation intended to be separate. Ultimately, cl 48A(1)(a) and (f) of the Regulation do not transgress the high threshold for unreasonableness. 

2. The exercise of power conferred by s 144G(6) and s 264 is complete by the Governor prescribing major bridges, tunnels or roads by reference to the defined terms in the Roads Act. Regulation 48A(1) does not delegate the prescription of major bridges, tunnels or roads, to some other person or entity. When the Minister exercises the power conferred by ss 46, 47, 48 and 52 of the Roads Act (corresponding to the provisions in cl 48A(1)(a)–(e)), the Minister is not exercising the power to prescribe a bridge, tunnel or road as a “major bridge tunnel or road.” The question of an improper purpose does not arise in the present context. No impermissible sub-delegate has occurred by cl 48A(1) of the Regulation.

Symbols

The national Parliamentary Joint Committee on Intelligence and Security Recommendations has released its report on the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023. 

The Bill would establish new offences in the Criminal Code for publicly displaying, and trading in goods that bear, prohibited Nazi or Islamic State symbols; and implement other measures relating to counter-terrorism offences and the listing of terrorist organisations. 

The Committee's recommendations are as follows 

1  that the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 be amended to remove the Islamic State flag from the definition of a prohibited hate symbol. The Committee further recommends that the Government give consideration to establishing a new offence that would prohibit the public display and trade of symbols associated with terrorist organisations. 

2  that the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 be amended so that the offence provisions for the trading of items bearing a prohibited symbol do not come into force for a period of 6-12 months, so that collectors have a window in which to dispose of part or all of their collections if they so wish. 

3  that the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 be amended to extend the journalistic purpose exemptions in sections 80.2H(9)(b) and 80.2J(5) include editors, producers and others involved in the news and current affairs reporting process. 

4 that the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 be amended so that the journalistic purpose defence in section 474.45D(1)(e) include editors, producers and others involved in the news and current affairs reporting process. 

5  that the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 be amended to clarify that any report by this Committee in respect of terrorist listings under the Criminal Code be presented to the Parliament. 

6  that, subject to the amendments recommended in this report, the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 be passed by the Parliament.  

Criticism

'To What Extent Should Academic Freedom Allow Academics To Criticise Their Universities' by Nina Levine and Haydn Rigby in (2022) 48(1) Monash University Law Review comments 

The recent case of Schröder-Turk v Murdoch University has thrown up questions in relation to the extent to which an academic is allowed to criticise the university at which they are employed. What freedom, if any, does an academic have to criticise the practices of their Australian university? Are there any limits to this freedom? Are these limits appropriate? These questions in turn raise questions as to the existence and nature of any right that an academic has to exercise academic freedom in Australia and the extent to which this right may provide an academic with more protection to criticise their university employer than they may have otherwise had and whether this may have unintended, detrimental consequences. Does this right to academic freedom allow academics to criticise their institution whether or not they have a reasonable basis for doing so and if so, should this be the case? This article explores these questions with particular reference to the effect of the Model Code for the Protection of Free Speech and Academic Freedom recommended by former High Court of Australia Chief Justice Robert French and proposes some amendments to this Code. 

In May 2019, Associate Professor Gerd Schröder-Turk, an academic staff member at Murdoch University and a staff representative on the Senate at the University, made statements on the Australian Broadcasting Corporation’s Four Corners program in which he expressed concern about the policies of Murdoch University (and those of other Australian universities) in relation to international students. In particular, he expressed his discomfort with Murdoch University’s waiving of English proficiency requirements in order to increase international student enrolments. Murdoch subsequently removed Associate Professor Schröder-Turk from its Senate body which resulted in his bringing an action against the University in which he made two claims against it. First, Associate Professor Schröder-Turk claimed that Murdoch University had breached s 340 of the Fair Work Act 2009 (Cth) (‘FW Act’) in taking adverse action against him because he exercised his workplace rights including his right to academic freedom. Secondly, he alleged that the University had contravened the Public Interest Disclosure Act 2003 (WA) (‘WA PID Act’) by taking detrimental action against him because of his disclosure of public interest information or ‘whistleblowing’. Murdoch University’s response was to bring a cross-claim against the Associate Professor, alleging that he had breached his fiduciary duty to the university by his disclosure to journalists and claiming that as a result of this unfavourable media coverage, the university had suffered revenue loss from a reduction of international student enrolments and reputational damage to the university. The university’s response was met with disbelief by the academic community (and beyond) as it appeared to fly in the face of academic freedom with the university being petitioned to drop its cross-claim. The university subsequently did withdraw its cross-claim, a fact that did not escape media attention, and at the time of writing, it has resolved the remaining legal issues with the Associate Professor out of court, bringing the litigation to an end. 

Associate Professor Schröder-Turk’s case is not the first of its kind in Australia. Indeed, there have been similar cases where academic staff have made accusations of wrongdoing occurring within their university. A notable example is that of Professor Ted Steele who was dismissed from, and then subsequently reinstated to, the University of Wollongong after he made allegations against it of ‘soft marking’ practices in favour of international full-fee paying students. Another example is that of sessional lecturer Ian Firns who in 2003 raised concerns about the Graduate School of Business at the University of Newcastle in relation to their handling of plagiarism by overseas students. These concerns were ultimately investigated by the Independent Commission Against Corruption (‘ICAC’) with two members of the University’s staff being found to have engaged in corrupt conduct. 

These cases all throw up questions in relation to the extent to which an academic is allowed to criticise the university at which they are employed, and to whom they can disclose such criticism. What freedom, if any, does an academic have to criticise the practices of their Australian university? Are there any limits to this freedom? Are these limits appropriate? These questions in turn raise questions as to the existence and nature of any right that an academic has to exercise academic freedom in Australia and the extent to which this may provide an academic with more protection to criticise their university employers than they may have otherwise had, and whether this may have any detrimental consequences. Does this right to academic freedom allow academics to criticise their institution whether or not they have a reasonable basis for doing so and if so, should this be the case? This article explores these questions. In doing so, it makes particular reference to the recent Report of the Independent Review of Freedom of Speech in Australian Higher Education Providers(‘Review’) led by the Hon Robert S French AC, former Chief Justice of the High Court of Australia, and its recommended ‘Model Code for the Protection of Free Speech and Academic Freedom’, together with the subsequent amendments to it, being those amendments adopted by the University Chancellors Council (‘UCC’) (the ‘Model Code’). Given the current pressure being placed on universities to adopt the Model Code, with its definition of academic freedom as explained further below, it is likely that the Model Code will be of primary relevance in the Australian higher education sector in the coming years. However, an understanding of the freedom that academic staff would otherwise have to criticise the universities at which they are employed is necessary to fully appreciate the effect of the Model Code on this right. 

As academic freedom is central to this article, the article begins by considering its meaning for Australian universities. It reflects on the reluctance of those involved in the establishment of the first universities in Australia to provide for any defined right of academic freedom or any demarcated limits on its expression by academic staff. It discusses the consequences of this reluctance as shown in Australian university history before examining the definition of academic freedom proposed by French in the Review and the Model Code. It then considers the extent to which an academic today would have the freedom at common law and under statute to criticise the practices of their universities independently of any right to academic freedom. Following this, it draws on the extensive examination of university legislation, enterprise agreements (‘EAs’) and policies conducted for the purposes of the Review in considering whether academic staff at Australian universities had any express or implied right to academic freedom prior to the Model Code and the extent to which any such right of academic freedom allowed an academic to criticise their university. Finally, it considers the extent to which the Model Code may provide an academic with more freedom to criticise their universities than they would have otherwise had and whether this may have any unintended, detrimental consequences. It makes recommendations as to how the Model Code could be amended to avoid any such consequences. 

As stated in the Review, ‘[o]ne aspect of academic freedom which has not received great prominence in the Australian debate, is the freedom of academic staff to publicly criticise the policies or performance of the institution’s administration and governors’. It is hoped that this article will help to provide this aspect with greater prominence.

Age Verification

The national Government response to the 'Roadmap for Age Verification' developed by the eSafety Commissioner (eSafety) states 

The Roadmap acquits a key recommendation in the February 2020 House of Representatives Standing Committee on Social Policy and Legal Affairs (the Committee) report, Protecting the Age of Innocence (the report), which recommended that the Australian Government direct and adequately resource the eSafety Commissioner to expeditiously develop and publish a roadmap for the implementation of a regime of mandatory age verification for online pornographic material. The Government response to the report, released in June 2021, supported the recommendation and noted that the Roadmap would be based on ‘detailed research as to if and how a mandatory age verification mechanism or similar could practically be achieved in Australia’. 

The Roadmap makes a number of recommendations for Government, reflecting the multifaceted response needed to address the harms associated with Australian children accessing pornography. 

This Government response addresses these recommendations, sets out the Government’s response to this issue more broadly and outlines where work is already underway. This includes work being undertaken by eSafety under the Online Safety Act 2021, noting that since the Roadmap was first recommended in February 2020, the Australian Government has delivered major regulatory reform to our online safety framework with the passage of the Online Safety Bill on 23 July 2021 with bipartisan support, and the commencement of the Online Safety Act on 23 January 2022. The Online Safety Act sets out a world-leading framework comprising complaints-based schemes to respond to individual pieces of content, mechanisms to require increased transparency around industry’s efforts to support user safety, and mandatory and enforceable industry codes to establish a baseline for what the digital industry needs to do to address restricted and seriously harmful content and activity, including online pornography.   

The Roadmap highlights concerning evidence about children’s widespread access to online pornography 

Pornography is legal in Australia and is regulated under the Online Safety Act. Research shows that most Australian adults have accessed online pornography, with a 2020 survey by the CSIRO finding that 60 per cent of adults had viewed pornography. 

However, pornography is harmful to children who are not equipped to understand its contents and context, and they should be protected from exposure to it online. Concerningly, a 2017 survey by the Australian Institute of Family Studies found that 44 per cent of children between the ages of 9-16 were exposed to sexual images within the previous month. 

The Roadmap highlights findings from eSafety’s research with 16-18-year-olds, revealing that of those who had seen online pornography (75% of participants), almost half had first encountered it when they were 13, 14, or 15 years old. Places where they encountered this content varied from pornography websites (70%), social media feeds (35%), ads on social media (28%), social media messages (22%), group chats (17%), and social media private group/pages (17%). The Roadmap acknowledges that pornography is readily available through websites hosted offshore and also through a wide range of digital platforms accessed by children. 

The Roadmap finds an association between mainstream pornography and attitudes and behaviours which can contribute to gender-based violence. It identifies further potential harms including connections between online pornography and harmful sexual behaviours, and risky or unsafe sexual behaviours. 

The Roadmap finds age assurance technologies are immature, and present privacy, security, implementation and enforcement risks 

‘Age verification’ describes measures which could determine a person’s age to a high level of accuracy, such as by using official government identity documents. However, the Roadmap examines the use of broader ‘age assurance’ technologies which include measures that perform ‘age estimation’ functions. The Roadmap notes action already underway by industry to introduce and improve age assurance and finds that the market for age assurance products is immature, but developing. 

It is clear from the Roadmap that at present, each type of age verification or age assurance technology comes with its own privacy, security, effectiveness and implementation issues. 

For age assurance to be effective, it must: • work reliably without circumvention; • be comprehensively implemented, including where pornography is hosted outside of Australia’s jurisdiction; and • balance privacy and security, without introducing risks to the personal information of adults who choose to access legal pornography. 

Age assurance technologies cannot yet meet all these requirements. While industry is taking steps to further develop these technologies, the Roadmap finds that the age assurance market is, at this time, immature. 

The Roadmap makes clear that a decision to mandate age assurance is not ready to be taken. 

Without the technology to support mandatory age verification being available in the near term, the Government will require industry to do more and will hold them to account. The Australian Government has always made clear that industry holds primary responsibility for the safety of Australian users on their services. It is unacceptable for services used by children to lack appropriate safeguards to keep them safe. While many platforms are taking active steps to protect children, including through the adoption of age assurance mechanisms, more can and should be done. The Government is committed to ensuring industry delivers on its responsibility of keeping Australians, particularly children, safe on their platforms. 

Government will require new industry codes to protect children 

The effective implementation of the Online Safety Act is a priority of the Albanese Government, including the creation of new and strengthened industry codes to keep Australians safe online. The industry codes outline steps the online industry must take to limit access or exposure to, and distribution and storage of certain types of harmful online content. The eSafety Commissioner can move to an enforceable industry standard if the codes developed by industry do not provide appropriate community safeguards. 

The codes are being developed in two phases, the first phase addressing ‘class 1’ content, which is content that would likely be refused classification in Australia and includes terrorism and child sexual exploitation material. The second phase of the industry codes will address ‘class 2’ content, which is content that is legal but not appropriate for children, such as pornography. 

The codes and standards can apply to eight key sections of the online industry, which are set out in the Online Safety Act: • social media services (e.g. Facebook, Instagram and TikTok); • relevant electronic services (e.g. services used for messaging, email, video communications, and online gaming services, including Gmail and WhatsApp); • designated internet services (e.g. websites and end-user online storage and sharing services including Dropbox and Google Drive); • internet search engine services (e.g. Google Search and Microsoft Bing); • app distribution services used to download apps (e.g. Apple IOS and Google Play stores); • hosting services (e.g. Amazon Web Services and NetDC); • internet carriage services (e.g. Telstra, iiNet, Optus, TPG Telecom and Aussie Broadband); and • manufacturers and suppliers of any equipment that connects to the internet, and those who maintain and install it (e.g. of modems, smart televisions, phones, tablets, smart home devices, e-readers etc). 

Phase 1 

Work on the first phase of codes commenced in early 2022, and on 11 April 2022 eSafety issued notices formally requesting the development of industry codes to address class 1 material. On 1 June 2023, the eSafety Commissioner agreed to register five of the eight codes that were drafted by industry. The eSafety Commissioner assessed these codes and found that they provide appropriate community safeguards in relation to creating and maintaining a safe online environment for end-users, empowering people to manage access and exposure to class 1 material and strengthen transparency of and accountability for class 1 material. 

The steps that industry must take under these codes include, for example: • requirement for providers under the Social Media Services Code, including Meta, TikTok and Twitter, to remove child sexual exploitation material and pro-terror material within 24 hours of it being identified and take enforcement action against those distributing such material, including terminating accounts and preventing the creation of further accounts; and • requirement for providers under the Internet Carriage Service Providers Code, including Telstra, iiNet and Optus, to ensure Australian end-users are advised on how to limit access to class 1 material by providing easily accessible information available on filtering products, including through the Family Friendly Filter program, at or close to the time of sale. 

These registered codes will become enforceable by eSafety when they come into effect on 16 December 2023. 

The eSafety Commissioner requested that industry revise the code for Search Engine Services, to ensure it accounts for recent developments in the adoption of generative AI, and made the decision not to register the Relevant Electronic Services Code and Designated Internet Services Code. The eSafety Commissioner found that these two codes failed to provide appropriate community safeguards in relation to matters that are of substantial relevance to the community. For these sections of industry, eSafety will now move to develop mandatory and enforceable industry standards. The registered codes, including all of the steps industry are now required to take, are available at eSafety’s website: www.esafety.gov.au/industry/codes/register-online-industry-codes-standards. 

Phase 2 

The next phase of the industry codes process will address ‘class 2’ content, which is content that is legal, but not appropriate for children, such as pornography. 

In terms of the content of the code – which will be subject to a code development process – Section 138(3) of the Online Safety Act 2021 outlines examples of matters that may be dealt with by industry codes and industry standards, and includes: • procedures directed towards the achievement of the objective of ensuring that online accounts are not provided to children without the consent of a parent or responsible adult; • procedures directed towards the achievement of the objective of ensuring that customers have the option of subscribing to a filtered internet carriage service; • giving end‑users information about the availability, use and appropriate application of online content filtering software; • providing end‑users with access to technological solutions to help them limit access to class 1 material and class 2 material; • providing end‑users with advice on how to limit access to class 1 material and class 2 material; • action to be taken to assist in the development and implementation of online content filtering technologies; and • giving parents and responsible adults information about how to supervise and control children’s access to material. 

In light of the importance of this work, the Minister for Communications has written to the eSafety Commissioner asking that work on the second tranche of codes commence as soon as practicable, following the completion of the first tranche of codes. The Government notes the Roadmap recommends a pilot of age assurance technologies. Given the anticipated scope of the class 2 industry codes, this process will inform any future Government decisions related to a pilot of age assurance technologies. The Government will await the outcomes of the class 2 industry codes process before deciding on a potential trial of age assurance technologies. 

Government will lift industry transparency 

The Government also notes that the Online Safety Act 2021 sets out Basic Online Safety Expectations (BOSE) for the digital industry and empowers the eSafety Commissioner to require industry to report on what it is doing to address these expectations. A core expectation, set out in section 46(1)(d) of the Online Safety Act 2021, is that providers ‘…will take reasonable steps to ensure that technological and other measures are in effect to prevent access by children to class 2 material provided on the service’. The Online Safety (Basic Online Safety Expectations) Determination 2022 also provides examples of ‘reasonable steps’ that industry could take to meet this expectation, which includes ‘implementing age assurance mechanisms.’ 

The Commissioner is able to require online services to report on how they are meeting the BOSE. Noting the independence of the eSafety Commissioner’s regulatory decision-making processes, the Government would welcome the further use of these powers and the transparency that they bring to industry efforts to improve safety for Australians, and to measure the effectiveness of industry codes. 

Government will ensure regulatory frameworks remain fit-for-purpose 

The Government has committed to bring forward the independent statutory review of the Online Safety Act, which will be completed in this term of government. With the online environment constantly changing, an early review will ensure Australia’s legislative framework remains responsive to online harms and that the eSafety Commissioner can continue to keep Australians safe from harm. The review of the Privacy Act 1988 (Privacy Act Review) also considered children’s particular vulnerability to online harms, and the Privacy Act Review Report made several proposals to increase privacy protections for children online. The Government is developing the response to the Report, which will set out the pathway for reforms. 

The Privacy Act Review Report proposes enshrining a principle that recognises the best interests of the child and recommends the introduction of a Children’s Online Privacy Code modelled on the United Kingdom’s Age Appropriate Design Code. It is recommended that a Children’s Online Privacy Code apply to online services that are likely to be accessed by children. The requirements of the code would assist entities by clarifying the principles-based requirements of the Privacy Act in more prescriptive terms and provide guidance on how the best interests of the child should be upheld in the design of online services. For example, assessing a child’s capacity to consent, limiting certain collections, uses and disclosures of children’s personal information, default privacy settings, enabling children to exercise privacy rights, and balancing parental controls with a child’s right to autonomy and privacy. 

The requirements of the Code could also address whether entities need to take reasonable steps to establish an individual’s age with a level of certainty that is appropriate to the risks, for example by implementing age assurance mechanisms. 

More support and resources for families 

While the Government and our online safety regulator will continue working with industry on this challenge, tools are already available to prevent children accessing pornography online. 

The Government supports the eSafety Commissioner’s work in developing practical advice for parents, carers, educators and the community about safety technologies. These products include online resources such as fact sheets, advice and referral information, and regular interactive webinars. These resources are freely available through the eSafety Commissioner’s website at: www.eSafety.gov.au. The Roadmap proposes the establishment of an Online Safety Tech Centre to support parents, carers and others to understand and apply safety technologies that work best for them. The Government has sought further advice from the eSafety Commissioner about this proposal to inform further consideration. 

The Roadmap also recommends that the Government: • fund eSafety to develop new, evidence-based resources about online pornography for educators, parents and children; and • develop industry guidance products and further work to identify barriers to the uptake of safety technologies such as internet filters and parental controls. The Government supports these recommendations. In the 2023-24 Budget the Government provided eSafety with an additional $132.1 million over four years to improve online safety, increasing base funding from $10.3 million to $42.5 million per year. This ongoing and indexed funding provides Australia’s online safety regulator with funding certainty, allowing long term operational planning, more resourcing for its regulatory processes, and to increase education and outreach. 

The eSafety Commissioner works closely with Communications Alliance – an industry body representing the communications sector – to provide the Family Friendly Filter program. Under this program, internet filtering products undergo rigorous independent testing for effectiveness, ease of use, configurability and availability of support prior to certification as a Family Friendly Filter. Filter providers must also agree to update their products as required by eSafety, for example where eSafety determines, following a complaint, that a specified site is prohibited under Australian law.

Speech

'What Was Orwell's Conception of Free Speech?' by in (2023) George Orwell Studies (Forthcoming) comments 

Orwell’s views on the nature of free speech are significantly more complex than is often recognised. This paper examines what he had to say about freedom of speech and intellectual freedom. It seeks to provide a philosophical analysis of his understanding and use of these concepts and to address some apparent tensions in his thought. In so doing, the paper identifies five dominant aspects of Orwell’s account of free speech. He viewed free speech as closely related to intellectual freedom, which he highly valued; he treated free speech as primarily about the ability to say what one believes to be true; he thought that both government and various kinds of private actors posed serious threats to free speech; he believed that free speech required social safeguards, in addition to legal protection; and he recognised that free speech was a right with limits. He wrote little about the freedom of speech for liars. The paper concludes with the observation that he, therefore, left us with a number of crucial questions to discuss and think about for ourselves. 

Regulation

'The Digital Services Act and the EU as the Global Regulator of the Internet' by Ioanna Tourkochoriti in (2023) 24(1) Chicago Journal of International Law discusses 

the Digital Services Act (DSA), the new regulation enacted by the EU to combat hate speech and misinformation online, focusing on the major challenges its application will entail. However sophisticated the DSA might be, major technological challenges to detecting hate speech and misinformation online necessitate further research in implementing the DSA. This Essay also discusses potential conflicts with U.S. law that may arise in the application of the DSA. The gap in regulating the platforms in the U.S. has meant that the platforms adapt to the most stringent standards of regulation existing elsewhere. In 2016, the EU agreed with Facebook, Microsoft, Twitter, and YouTube on a code of conduct countering hate speech online. As part of this code, the platforms agreed to rules or Community Guidelines and to practice content moderation in conformity with them. The DSA builds on the content moderation system by enhancing the internal complaint-handling systems the platforms maintain. In the meantime, some states in the U.S., namely Texas and Florida, enacted legislation prohibiting the platforms from engaging in viewpoint discrimination. Two federal courts of appeals that have examined the constitutionality of these statutes under the First Amendment are split in their rulings. This Essay discusses the implications for the platforms’ content moderation practices depending on which ruling will be upheld. ... 

Tourkochoriti argues

Extreme speech has become a major source of mass unrest throughout the world. Social media platforms magnify the conflicts that lie latent within many societies, which are often further fueled by powerful political actors. Similarly, widespread misinformation during the COVID-19 pandemic and the perceptions of these platforms’ inadequate responses led the European Union (EU) to pass the 2022 Digital Services Act (DSA) to combat misinformation and extremist speech.1 The EU also strengthened its Code of Practice on Disinformation. Although these are important developments toward regulating hate speech online, the legislation will be difficult to implement. There are major technological challenges in monitoring online hate speech that necessitate further research. Furthermore, depending on legal developments in the United States (U.S.), the EU’s new legal regime might lead to a conflict with U.S. law, which will complicate platforms’ content moderation processes. 

The DSA responds to concerns expressed about the shortcomings of the system of content moderation currently applied by major social media platforms. Although it offers a sophisticated regulatory model to combat hate speech and misinformation, further research is required in several areas related to detecting such content. The state of the relevant detection technologies raises several concerns, which relate to the difficulties in the current artificial intelligence (AI) models that have been developed to detect hate speech and misinformation. Research is also needed to determine the impact of exposure to hate speech online. 

The U.S. offers extended protection for freedom of speech. In many European states, however, it is legitimate for the government to limit abuse of the same freedom to protect citizens from harm caused by hate speech. It is also legitimate to limit fake news. In the U.S., the sparse regulation of speech at the federal level has left a gap to be filled by states and civil society actors. Florida and Texas enacted legislation to limit online platforms’ discretion to refuse to host others’ speech. More frequently, contractual terms limit speech rights in several private institutions in the U.S. The major U.S.-based social media companies (Facebook and Twitter) have created deontology committees to limit hate speech in the U.S. under pressure from the EU. Questions emerged recently among academics and political actors in the EU on whether these platforms are limiting too much speech as private actors. The concern emerged that the platforms may be limiting even more speech than what is acceptable in Europe, where limits to hate speech by the government are acceptable. 

Courts have the last word in Europe about whether social media users’ freedoms will be adequately protected. Citizens can bring claims before courts alleging violations of their constitutional rights by the platforms. The doctrine of horizontal effect of constitutional rights, dominant in European states, enables them to do so. According to this doctrine, the Constitution applies not only to the vertical relationship between the state and its citizens, but also to the horizontal relationship between private parties within society. The constitutionally protected right to freedom of expression justifies government intervention to ensure its protection against civil society actors too. In several EU member states, the DSA will supersede existing national legislation regulating hate speech and fake news online. France has enacted such legislation, the constitutionality of which was examined by the Constitutional Council. Germany has also enacted legislation generating significant case law in this area. The DSA will trump even U.S. free speech law insofar as the major companies are transnational and must therefore follow European rules as well as American law. However, depending on future court decisions, a conflict may emerge between U.S. law and the DSA. Should this conflict emerge, content moderation may become challenging for the platforms, as they will need to maintain different moderation standards in the U.S. and in the EU. 

Social media companies are required to modify their operational practices to abide by the EU’s Code of Conduct Countering Illegal Hate Speech Online. Specifically, platforms are required to offer enhanced internal complaint-handling mechanisms. They must also meet several procedural requirements in investigating complaints. They must issue prior warnings before removing users. 

The DSA applies to providers of intermediary services irrespective of their place of establishment or residence “in so far as they provide services in the Union, as evidenced by a substantial connection to the Union.” Social media companies modify their behavior to meet the most stringent legal regimes in order to be able to offer their services everywhere. So, by engaging in regional regulation of online speech, the EU is becoming a global regulator of the internet. 

Part II of this Essay discusses the role platforms play in defining the public sphere today and the implications of that role for government regulation. Part III presents how the DSA complements existing codes of practice in countering illegal hate speech. Part IV investigates the challenges that regulating online extreme speech and misinformation pose for governments and platforms. These challenges relate to the state of the relevant detection technologies. Part V focuses on transnational enforcement of the Act and discusses possible areas of conflict with U.S. law. Further research is needed to establish guidelines for establishing what counts as hateful, violent, dangerous, offensive, or defamatory expression, insofar as these forms of expression are subject to DSA regulation.

Infrastructure

'Infrastructuring the Digital Public Sphere' by Julie E Cohen in (2023) 25 Yale Journal of Law & Technology (forthcoming) comments 

The idea of a "public sphere"-- a shared, ideologically neutral domain where ideas and arguments may be shared, encountered, and contested -- serves as a powerful imaginary in legal and policy discourse, informing both assumptions about how public communication works and ideals to which inevitably imperfect realities are compared. In debates about feasible and legally permissible content governance mechanisms for digital platforms, the public sphere ideal has counseled attention to questions of ownership and control rather than to other, arguably more pressing questions about systemic configuration. This essay interrogates such debates through the lens of infrastructure, with particular reference to the ways that digital tracking and advertising infrastructures perform systemic content governance functions. 

Social infrastructure of a different sort in recommendations by the Productivity Commission in its Advancing Prosperity: 5-year Productivity Inquiry report.

The Commission states

Building an adaptable workforce: education 

Reflecting the role of education in creating a high skilled and highly adaptable workforce, broad ranging reforms are proposed across higher education, vocational education and training (VET), schools and lifelong learning. These reforms emphasise stronger foundational learning to support further skills acquisition throughout individuals’ working lives via a broader array of flexible options. 

Higher education reforms aim to create a more dynamic university sector, putting greater emphasis on quality teaching. Loan reforms would expand access to high quality VET, and encourage emerging vocational options that develop broad, adaptive and less occupation specific skills. 

A more coherent approach to lifelong learning and ongoing skill development is based on targeted tax incentives, and the improved availability and recognition of flexible, short form training options.  

Long term improvements in school outcomes are possible through increasing (and judicious) use of learning technology and a stronger link between pedagogical evidence and classroom practice. 

Proposed reforms focus on assisting governments and schools in this journey. 

 Reform directive 1: Improve schools’ capacity to lay the educational foundations for the future workforce 

Recommendation 8.1 Leverage digital technology in schools 

State and Territory Governments should work with schools to extend, improve and embed the use of education technology in order to realise future benefits for students. Initiatives should aim to: • enable teaching practices to evolve with the changing classroom environment by prioritising the development and implementation of digital tools to support teaching and learning, while balancing flexibility for individual jurisdictions’ needs – this could include developing an online assessment tool and giving the Australian Education Research Organisation (AERO) responsibility for researching and vetting effective digital technologies to be implemented in schools • replace manual school administrative processes with technology based and automated solutions where this has not been done already – this could include evaluating technology based solutions for administrative processes currently in place and developing mechanisms to diffuse these to other schools • support continuous commitment to ongoing professional development modules that support teachers in using data analytics to drive student improvement. 

Recommendation 8.2 Make best practice teaching common practice 

State and Territory Governments should facilitate greater classroom access for the Australian Education Research Organisation (AERO) to support more principal and teacher involvement in education research to ensure that evidence based research provides information that is salient and readily applicable by practitioners. Initiatives should focus on: • enabling greater observation of, and feedback on, classroom teaching practices, by supporting more informal teacher networks, and creating or strengthening the existing roles within the local school system for highly accomplished and lead teachers (HALT) to share their in depth knowledge and skills with their colleagues • increasing curriculum implementation support for teachers, by curating high quality, evidence based and government endorsed curriculum resources (curriculum plans, whole subject sequences, lesson plans and classroom tools), to be made available for teachers and school leaders from a single source.   

Reform directive 2: Enable innovative schooling approaches for improved learning outcomes 

Recommendation 8.3 Enable experimentation with alternative approaches to schooling 

State and Territory Governments should be open to experimenting with new, innovative school models or operational changes where there is an evidence base (including overseas) to suggest outcomes could be improved for Australian students. In the first instance, legislative, regulatory, administrative or policy barriers that would prevent individual schools varying their operating model should be removed. In addition, there should be capacity and appropriate resourcing within the local school system to allow the merits of any trials to be evaluated. Innovations should aim to: • offer different lesson delivery options to lift quality teaching and learning, including for example, offering online classes in the absence of a teacher with the relevant expertise in a topic, or trials of untimed syllabus approaches to promote a continuous learning process • better cater to student needs to encourage school attendance and lift student outcomes, including through variations in school hours and use of technology to personalise students’ learning environment. 

Reform directive 3: Grow access to tertiary education 

Recommendation 8.4 Grow access to higher education over time 

The Australian Government should adopt an improved demand driven model for providing Commonwealth supported places to domestic undergraduate university students, subject to measures outlined in other recommendations that: contain fiscal costs (recommendation 8.5); and ensure all students are adequately supported (recommendations 8.13 and 8.14).   

Recommendation 8.5 Better targeting of investment in higher education 

The Australian Government should introduce a new university funding model to better target investment while facilitating wider access to higher education. • Total university funding per student by field of study (comprising the student contribution and government contribution) should continue to be the cost of delivery for that field (reflecting a median estimate of efficient costs with the methodology to be refined over time as outlined in recommendation 8.6). • The student contribution should be set based on average expected earnings for each field of study, with students with a greater capacity to repay incurring more debt. Student contributions should be higher, on average, to recoup a greater share of the costs of university from those who benefit from attending university, rather than recouping this from the broader tax base. This would also help to fund the return to a demand driven system. • The government contribution should make up the gap between the student contribution and estimated cost of delivery for each field of study. 

Recommendation 8.6 Improve price setting in tertiary education 

The Australian Government should conduct regular costing exercises to estimate the cost of delivering tertiary teaching and research. The methodology underpinning these cost exercises should be periodically reviewed and refined to inform more accurate cost estimates, and should aim to ultimately reflect only efficient costs. These cost estimates should inform funding as well as price and loan caps, to encourage efficient delivery of quality education and research by tertiary institutions. 

Recommendation 8.7 Expand loan eligibility to more students 

The Australian Government, in consultation with State and Territory governments, should gradually expand VET Student Loan eligibility. • Access should expand to more Diploma and Advanced Diploma level courses. Instead of current criteria, all courses should be eligible except those that are primarily taken for leisure or have demonstrated poor labour market outcomes. This expansion should be evaluated after a suitable period, including observed effects of the earlier expansion on student participation, course decisions and employment outcomes; and any evidence of rorting by providers. Following this evaluation, and addressing any implementation issues, eligibility should also be considered for Certificate IV and Certificate III courses. • Loan fee arrangements should also be equalised across the tertiary sector, levied on all students regardless of type (that is, extended from fee for service VET students and non university higher education students to include subsidised VET students and university students). The loan fee rate should also be lowered reflecting application to a broader base of students. 

Reform directive 4: Support a culture of lifelong learning for an agile workforce 

Recommendation 8.8 Consolidate support for lifelong learning 

The Australian Government should consolidate and examine the effectiveness and accessibility of available programs to support lifelong learning and to reduce gaps and increase uptake. In doing so, it should evaluate the effectiveness of targeted programs to inform and prioritise policies for a consolidated lifelong learning strategy by: • trialling policies that target support at employed lower income people, including vouchers for career planning and work related upskilling and reskilling • evaluating the incoming Skills and Training Boost to assess its effects on the uptake of additional overall training, the skills it develops, productivity, labour mobility, and the characteristics of the businesses most responsive to the measure. Government linked administrative datasets will be useful for such an evaluation but might need to be supplemented • extending the existing capacity for self education deductions to education that is likely to lead to additional income outside of the employee’s existing employment. This change should be evaluated after a suitable period, and pursued subject to assurance that strong integrity measures can effectively reduce the risks of fraudulent claims • examining the effectiveness of training programs delivered to people who are unemployed and those transitioning to work such as Employability Skills Training programs, particularly for people later in life. Government should also increase the accessibility, flexibility, and coherence of available pathways by: • extending income contingent loans to more VET courses (recommendation 8.7) • providing alternative exit opportunities through the provision of nested qualifications (recommendation 8.13) • requiring publicly funded universities to make their lecture materials available online, with consideration of extending this to some aspects of government funded VET where that is practically feasible (recommendation 8.9) • ensuring that the Australian Government’s Microcred Seeker extend beyond courses supplied by TEQSA recognised providers to the VET sector and where possible, to other private and well recognised domestic and international course offerings • constraining regulations that make acquiring new skills and moving to new occupations overly onerous. Most particularly, through regular review of occupational licensing policies and addressing issues in scope of practice (reform directive 10).   

Reform directive 5: Increase tertiary education teaching quality to underpin a well trained workforce 

Recommendation 8.9 Leverage information to improve quality 

The Australian Government should: • increase the transparency of teaching performance by requiring universities to provide all lectures online and for free • refine and validate new Quality Indicators for Learning and Teaching (QILT), and use these and other data to develop and publish more meaningful indicators of tertiary teaching quality and performance • adapt the ComparED tool to address the risk that students may misunderstand its information and consider the option of abandoning it and providing additional QILT data to non government funded websites that cover many other aspects of higher education providers relevant to student choice • give the Tertiary Education Quality and Standards Agency (TEQSA) the responsibility to undertake external university teaching quality assurance review processes akin to those applied by the Quality Assurance Agency (Scotland). 

Recommendation 8.10 Professionalise the teaching role 

The Australian Government should bolster the incentives for, and prestige of, higher education teaching by: • facilitating trials of additional funding for undertaking research and teaching development provided to individual staff based on their teaching performance, drawing on the Griffith Business School’s Teaching Excellence Recognition Scheme (TERS) • trialling a modest Australian Research Council Grant that provides funding for teaching focused research for 6 months to a year • enhancing preparation for higher education teaching, informed by the evidence collected by initiatives outlined in recommendations 8.9 and 8.11. 

Recommendation 8.11 Develop an Australian evidence base 

The Australian Government should extend the role of the Australian Education Research Organisation (AERO) to the collection and dissemination of evidence on best practice post school teaching, covering both VET and higher education. As part of this new role, AERO should also: • draw on the lessons from the teaching practices of awardees of the Australian Government’s Australian Awards for University Teaching • undertake a rapid review of the use of formative and summative review processes and professional development initiatives in higher education institutions. 

Recommendation 8.12 Favour light handed and simple incentives over performance based funding 

The Australian Government should: • put on hold the scheduled commencement of performance based funding of universities in 2024 and only reinstitute if its risks are better managed and if other approaches to improving the performance of universities have proved ineffective • explore the option of financial rewards to higher education providers that AERO identifies as having made successful efforts to improve and use formative assessment tools and professional development (drawing on recommendation 8.11). 

Reform directive 6: Better and more flexible matching between students and work opportunities 

Recommendation 8.13 Expand alternative exit opportunities through the provision of nested qualifications 

The Australian Government should require that for any given undergraduate degree, Australian higher education providers create at least one subset of courses that, if completed, lead to a lower level qualification for students who decide to withdraw before completing the whole degree (‘a nested qualification’). The Australian Government should leave the design, requirements, and timing of the nested qualification/s to providers’ discretion, with the exception that any qualification would need to meet the relevant Tertiary Education Quality and Standards Agency (TEQSA) standards and monitoring requirements. 

Recommendation 8.14 Give students support to complete and clarity to exit 

The Australian Government should amend the Higher Education Support Act 2003 (Cth) (HESA) to support completion where desirable and facilitate early exits where necessary. It should do this by: • providing grants to encourage higher education providers to experiment with and share new strategies for student retention • assessing any individual grant for its effectiveness and lessons in post implementation reviews and evaluating the higher education grant program as a whole after six years to determine whether rounds of funding under the grant have contributed to a demonstrable improvement in student completion rates • amending the ‘census date’ in the HESA to the ‘payment date’ and requiring that universities effectively communicate to students that the payment date is the time when they can exit without having to pay fees for any initially commenced course.