Seymour David: Harmful Digital Communications Bill — In CommitteeText is incorporated into the Bound VolumeSeymour David: Harmful Digital Communications Bill — In Committee[Sitting date: 23 June 2015. Volume:706;Page:4657. Text is incorporated into the Bound Volume.]DAVID SEYMOUR (Leader—ACT):Any member of a House of Representatives has to balance the competing prerogatives of the people they specifically represent their political party and its philosophy—Stuart Nash: The 1 percent you represent.DAVID SEYMOUR: —thank you—and their own conscience. This is the first time that I have voted against a bill introduced by the National Government. It is because the people I directly represent generally believe that it is better to have these people over here and those people over there and by and large I would agree with their analysis. I am after all from Epsom myself. However as somebody who benefits from a free society and a long evolved common law tradition I believe the right thing to do is to oppose the Harmful Digital Communications Bill and at the very least remove some of its most egregious features.In time I predict that this legislation will come to be seen as a useful case study in bad lawmaking. It is the classic case. First you have the dramatic events to which people feel the need to respond. We have actually heard it tonight. Perhaps unwittingly they did not mean to come out but it came out from some members. “We have to do something.” is the major premise; “This is something.” is the minor premise. The conclusion is that passing this law must be the right thing to do. You have the hand-wringing and then you have the legislation and finally you end up in a very different place from where you started. It might also be an insight into why our profession if it can be called that slipped in only just in front of journalists when the public was asked very recently to rank the professions in a survey of public trust. That is because we tend to overpromise. The promise implicit in this bill is that we in this House can set up an approved agency that will actually solve one of the biggest problems that we have. The rhetoric is that if you do not support the bill then you are in favour of the most awful things that occur.Well I see that Mr Bishop and I both quoted Milton Friedman in our maiden speeches saying that policy should be judged not by its intentions but by its outcomes. The outcomes of this legislation were it to be passed in its present form might be compared with the Star Chamber. History does not repeat but sometimes it rhymes. This is not the first time in our constitutional history that our society has attempted to solve a problem by giving easy and convenient access to justice without the safeguards and restraints that have evolved elsewhere in common law over a long period of time. Of course if you know your history you will know that what happened was that the Star Chamber became a bully pulpit which was used by the politicians of the day to cow their opponents in fear and submission. Although fortunately we are no longer in medieval England the same principal deficiencies exist in this piece of legislation.I would direct members to the communication principles which would be appropriate if we were about to embark on a school camp but not for running a country. They tell us that it is wrong to disclose sensitive personal facts about another individual for example. They say you should not be indecent or obscene and that you should not harass another individual. In their totality it requires only one of them to be breached for you to be reported. They mean that practically any digital communication could be subject to the full force of this approved authority.Of course the rhetoric from the proponents of the bill is always similar to the epithet “If you’ve got nothing to hide then you’ve got nothing to fear”. They say: “Oh don’t you worry. If you’re being good then this will not apply to you.” Where you end up just like with the Star Chamber is with arbitrarily enforced bad law that can be used sometimes for good and sometimes for bad. It just depends who happens to be enforcing the law at any particular time. Of course you might say: “Well this is all worthwhile if only we believed that it was truly going to reduce harm and suffering.” If you believed that it was going to be effective then you might be willing to trade away some of the rights and freedoms that we have been lucky to inherit over a long period of time. But you only have to begin with a few of the simple practicalities.We have heard from members already about the difficulty of 48 hours being far too long on the internet. It reminds me of a quote from Top Gun: “BS 10 minutes! This thing will be over in 2 minutes.”Stuart Nash: Is that from your girlfriend?DAVID SEYMOUR: Keep it clean Mr Nash. The fact of the matter is the time frames and the evolution of viral trends on the internet about which we heard from the first member speaking are far quicker than intervention can take place. The pace of development of new websites and new fora is so rapid that it is unlikely that we will be able to enforce what Tracey Martin referred to as the invisible threats from the internet.Take for example the website Ask.fm where many young people voluntarily put themselves out almost to be harassed some would say. I have asked some young people: “Why on earth do you do this?” and they said: “Well actually we want to go there. We want to address concerns. We want to argue.” And of course many of the most tormentuous questions they face come from invisible questioners—people who as a practical matter cannot be identified. So there you have a whole range of activity that this bill would have no effect on mitigating whatsoever and yet none the less it is a very real concern to young people. Interestingly enough—and this is another deficiency of this policy project we are going on—Ask.fm has since introduced quite stringent safety and monitoring regulations voluntarily because ultimately it is not in its best interests to have people coming to its website and having bad experiences. So again we have underestimated the speed with which hosts will actually seek to improve the experiences that people have on their websites.But then you come to the question of criminalisation. It is said that we have to be in favour of this bill because we have to do something for the children. Well the fact of the matter is that criminal sanctions are effective only if you are seriously prepared to use them against the poster as we have heard or the perpetrator. Nobody in this House I believe is seriously willing to criminalise children but that would be the proposition if criminalisation was supposed to be an effective sanction against bullying of children.So I oppose Supplementary Order Paper 91 in part for procedural reasons. It is in some ways an improvement although as Mr Parker pointed out it is also a step backward for every step forward. I oppose this Supplementary Order Paper for procedural reasons because as members will know I have put up another Supplementary Order Paper Supplementary Order Paper 93 which removes the criminalisation element. You can still have your approved agency and you can still have your resolution but it removes the criminalisation and applies the criminal law to specific testable discoverable offences. If you take an intimate visual recording with or without the consent of the person in the recording and if you perpetrate this and then propagate it around the internet without their consent—perhaps without their knowledge—that is a crime. I do not think anybody in this Committee would say that that should not be a crime.If we wish to address a certain mischief let us address that mischief. If we are prepared to do that you never know we might find ourselves making better law. Indeed we might even improve the impression of our own profession that the public has if rather than overpromising in knee-jerk reactions to particularly high-profile scandals we actually set about to make proportional responses to problems that really exist out there in our community and that the Government and its agencies have an opportunity to actually fix while respecting our common law traditions.