Seymour David: Harmful Digital Communications Bill — Third ReadingText is incorporated into the Bound VolumeSeymour David: Harmful Digital Communications Bill — Third Reading[Sitting date: 30 June 2015. Volume:707;Page:4863. Text is incorporated into the Bound Volume.]DAVID SEYMOUR (Leader—ACT):It is an enormous privilege to live in a society that benefits from 800 years of common law which has given us among other rights and freedoms freedom of speech. It started perhaps most colloquially as the simple idea that “sticks and stones may break my bones but words will never hurt me”. In actual fact what has evolved is the idea that words can hurt sometimes. And over that long period of time an intricate network of defences has evolved so that people can for instance defend themselves against damage to their reputation that was done deliberately that was untrue and where the audience might be led to believe that it was true. That is our inheritance: 800 years of trying to figure out how exactly to protect freedom of speech on the one hand and people’s right not to be unfairly maligned on the other. Another great privilege that everybody in this room has—everyone on the floor of the House at least—is membership of this House of Representatives. To use the second privilege to destroy or at least to erode the first one—the way that this bill does—is something that I cannot support and therefore I must vote against this bill.This bill is a case study in bad lawmaking. All of the elements of bad lawmaking exist in this bill. Not since we microchipped dogs in the hope that it would prevent a particularly egregious dog event has there has been such a bad law before this House. First you had the high-profile and really quite disgraceful event. Then you had the discovery that in actual fact the laws in place had not been properly used by the agency in place to prevent the harms that occurred there. Then you had the knee-jerk reaction from the politicians who said: “We must do something. This bill is indeed something; therefore we will pass this bill and it must be the right thing to do.”What exactly does this bill do? Well the first thing that it does is introduce a set of communications principles that might be appropriate if we were about to embark on a school camp but which are not appropriate for the governance of 4.5 million people many of whom are adults—and the children among them are the responsibility of adults. It says that you cannot offend somebody. So for instance would Flight of the Conchords’ song Albi the Racist Dragon be offensive if it was communicated online? Well we are told in defence of the “badly burnt Albanian boy” from last week that of course this law would never be used in such a silly and un-sensible way. That is the problem with the law: it gives no protection. We are supposed to rely on the beneficence of the enforcers. That is bad lawmaking. If you were to say: “Happy 31st Liz” would that be giving away information of a personal nature about another person that you should not reveal? Would that be a bad example? How many of these bad examples will actually end up discouraging freedom of speech in what you might call a “chilling effect”?As I said in my maiden statement to the House it is ce qu’on voit et ce qu’on ne voit pas. It is not just what is seen but all of the unseen expression that will now not occur because of the chilling effect of the communications principles if the enforcement of it—even if not quite criminal yet you understand; you are going to be OK—by the approved agency is brought to bear. Perhaps that is why Voltaire said: “I defend to the death your right to say what you say” even when those are things he might have disagreed with. It is a sad day in this House when you have to rely on lots of dead Frogs to stand up for your civil liberties—and you probably will not be able to say that very soon either.It might be worthwhile to have this law if we truly believed that it was going to reduce harm and protect people. But in actual fact as soon as you start to look at the contradictions you can see that it will make little if any difference to reducing harm for people online. And there is genuine harm to be mitigated. You will find that there are much much simpler more straightforward ways to do that with far fewer side effects. For example we are concerned that children will bully each other. So the idea is to introduce criminal sanctions but of course you understand we are not really introducing criminal sanctions for children because they will go through the Youth Court. So somebody might ask why you would make a law that you did not intend to be enforced properly. Or for another contradiction you might ask how quickly most viral phenomena on the web take place. Well under this law you have at least 96 hours of back and forth before any kind of order can be enforced. So you might ask yourself how this seriously addresses the problem that most people face. Well I suspect that there is very little coincidence with the fact that it is the youngest members of this House who are most opposed to this bill. It is fundamentally a generational conflict—a law imposed by people who are not digital natives and who do not understand how the internet works on users of the internet who do.The pace of development on the internet is so rapid that in actual fact the incentive for the hosts of content is to give good experiences. If it is true that harm is being done then the one person who has both the incentive and the means to rapidly mitigate that harm is the host whether that be Facebook or Ask.fm or Twitter or whoever else hosts the website. For the same reason that harmful digital communication becomes exponentially greater those people have the tools to mitigate it. But you do not hear that from the Government or from the supporters of this bill. There is a moralising tone from them: if you have nothing to hide then you have nothing to fear; that these vague principles will not be enforced for silly reasons you understand; that as long as you are sensible and you are doing nothing wrong it will not be used against you. That is something that I cannot explain any further. Anybody who does not see the problem with that construction is incapable of having it explained to them but for those who do understand it that is why it is critical that this type of legislation becomes rarer and eventually obsolete in terms of being introduced to this House.Of course there are real concerns. Nobody denies that revenge porn and incitement to commit suicide are serious dangers and they are dangers that have come to some extent from technological advances. It would have been very simple—and I have to thank the Labour Party for supporting my Supplementary Order Paper last week—simply to say that in the Crimes Act it is a crime to make an intimate digital recording and to distribute it without the person’s consent particularly if your aim is to do harm. That is the right way to do it. I have to thank Clare Curran who approached me early on about opposing this bill and I apologise that we were not more proactive. I think we might have been able to defeat it. Ditto to some of my colleagues in the Greens who have bravely decided today that they will oppose this bill and support good lawmaking. I should probably compliment some of my friends in the National Government who have severe concerns about this bill but I do not wish to get them in trouble so I will not do that.In conclusion this is fundamentally about the quality of the laws that we make in this House. Do we wish to make laws that are fit for purpose and that address the problem with the smallest possible number of side effects or do we wish to make populist knee-jerk laws that will do very little to achieve their intended outcomes and yet have enormous unintended consequences and do great damage to the rights and freedoms that have evolved in our society over several hundred years? Do those of us who have the dual privilege of benefiting from 800 years of common law—and the freedom of speech that it has intricately delivered—and the privilege of being in this House want to use the second privilege to tear down the first one? Unfortunately it would seem that far too many of my colleagues in this House do.As a final thought it will not escape members that we often have a reputation in public opinion surveys as being very untrustworthy. Can I suggest to members that we will be back debating this discovering that we have overpromised in terms of our ability to reduce harm through digital communications and that we have under-delivered in terms of protecting rights and liberties. If we were to reverse that equation by opposing this bill we might very quickly improve that situation. Thank you.