Division Description Changes — Bills — Defence Legislation Amendment (Discipline Reform) Bill 2021; in Committee — 1st Dec 2021

Change	Division
senate vote 2021-12-01#9 Edited by mackay staff on 2022-05-13 11:51:57	Title Bills — Defence Legislation Amendment (Discipline Reform) Bill 2021; in Committee Defence Legislation Amendment (Discipline Reform) Bill 2021 - in Committee - Cyber-bullying service offence Description ~~<p class="speaker">Marise Payne</p>~~ <p>I table a supplementary explanatory memorandum relating to the government amendment (1) to be moved to the Defence Legislation Amendment (Discipline Reform) Bill 2021. I move government amendment on sheet ZA126:</p> <p class="italic">(1) Schedule 3, item 2, page 48 (line 2), omit "as offensive or", substitute "in all the circumstances".</p> <p>The purpose of this amendment is to insert the term 'in all the circumstances' and to remove the word 'offensive' from the new cyberbullying offence set out in clause 2 of schedule 3 of the bill. A cyberbullying offence will apply when a defence member has used a social media service or relevant electronic service in a way that a reasonable person would regard in all the circumstances as threatening, intimidating, harassing or humiliating another person.</p> <p>The Human Rights Committee has suggested in its report on 20 October that the cyberbullying offence be adjusted by either removing the offensive provision or limiting application of the offence to situations where there is a service connection and the need to maintain military discipline. The Scrutiny of Bills Committee also raised concern over the appropriateness of what a reasonable person would regard as the offensive use of a social media service or an electronic service. In moving this amendment, the government has listened to the concerns raised by these committees, and in response has proposed this amendment to the cyberbullying offence to omit 'as offensive or' and to substitute 'in all the circumstances'.</p> ~~<p class="speaker">Nick McKim</p>~~ ~~<p>I wish to place on the record the Greens' opposition to this amendment.</p>~~ ~~<p class="speaker">Jacqui Lambie</p>~~ <p>I would like to put our opposition to this amendment on record as well, please.</p> ~~<p class="speaker">Kimberley Kitching</p>~~ <p>Labor knows that the government has proposed an amendment to the new cyberbullying offence in the Defence Legislation Amendment (Discipline Reform) Bill 2021, set out at new section 48A. The effect of this would be that cyberbullying offences would apply when a defence member has used a social media service or relevant electronic service in a way that a reasonable person would regard in all the circumstances as threatening, intimidating, harassing or humiliating another person, but would not necessarily regard as offensive. The government says this is a response to concerns raised by the Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights.</p> <p>Labor will be opposing the amendment. In terms of the substance, we are concerned that the amendment narrows and weakens the proposed cyberbullying offence. Indeed, the government's own supplementary explanatory memorandum to the amendment acknowledges as much. We understand the issue that the minister is trying to address here but we are broadly satisfied with the interpretive guidance that has been provided in response to the questions from the Parliamentary Joint Committee on Human Rights about proportionality in relation to this new offence. Labor will not be supporting the amendment because we do not think that removing the word 'offensive' will have the desired overall effect of reflecting the reality of cyberbullying—that is, that a lot of it does come down to offence, or content that is considered offensive. The amendment appears to rely on a libertarian freedom of expression or free speech argument that we believe is inconsistent with the need to maintain a strong system of military discipline, which is the objective of the overall bill. Labor may be open to retaining the words 'in all the circumstances as threatening, intimidating, harassing or humiliating', but we think it's essential to retain the word 'offensive'. Otherwise, this risks watering down the offence.</p> <p>In terms of process and consultation, we are also disappointed that the government has tried to ram this amendment through at the eleventh hour. This amendment was known about for some time, but the government provided us with it and the supplementary explanatory memorandum only yesterday, potentially only an hour or so before the bill could have been debated. This is not simply a minor or technical amendment, so this was not enough time to consider properly the proposed change.</p> ~~<p class="speaker">Deborah O'Neill</p>~~ ~~<p>The question is that the amendment be agreed to.</p>~~ ~~<p></p>~~ ~~<p></p>~~ The majority voted against an [amendment](https://www.openaustralia.org.au/senate/?id=2021-12-01.186.1) introduced by NSW Senator [Marise Payne](https://theyvoteforyou.org.au/people/senate/nsw/marise_payne) (Liberal), which means it failed. It concerned the cyber-bullying service offence. Senator Payne [explained that](https://www.openaustralia.org.au/senate/?gid=2021-12-01.186.2): > The purpose of this amendment is to insert the term 'in all the circumstances' and to remove the word 'offensive' from the new cyberbullying offence set out in clause 2 of schedule 3 of the bill. A cyberbullying offence will apply when a defence member has used a social media service or relevant electronic service in a way that a reasonable person would regard in all the circumstances as threatening, intimidating, harassing or humiliating another person. ### Amendment text *> (1) Schedule 3, item 2, page 48 (line 2),** omit "as offensive or", substitute "in all the circumstances".* ### What does the bill do? According to the [bills digest](https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd2122a/22bd033), the purpose of the bill is "to improve and simplify the operation of the military discipline system by: * removing the subordinate summary authority and restructuring the summary authorities to simplify the* process for dealing with minor disciplinary issues* * expanding the disciplinary infringement scheme* to deal more effectively with minor breaches of discipline* * introducing new service offences in relation to the failure to perform a duty or carry out an activity, cyber-bullying and failure to notify change in circumstances particularly with regard to receipt of benefits and allowances."**

~~Marise Payne~~
I table a supplementary explanatory memorandum relating to the government amendment (1) to be moved to the Defence Legislation Amendment (Discipline Reform) Bill 2021. I move government amendment on sheet ZA126:
(1) Schedule 3, item 2, page 48 (line 2), omit "as offensive or", substitute "in all the circumstances".
The purpose of this amendment is to insert the term 'in all the circumstances' and to remove the word 'offensive' from the new cyberbullying offence set out in clause 2 of schedule 3 of the bill. A cyberbullying offence will apply when a defence member has used a social media service or relevant electronic service in a way that a reasonable person would regard in all the circumstances as threatening, intimidating, harassing or humiliating another person.
The Human Rights Committee has suggested in its report on 20 October that the cyberbullying offence be adjusted by either removing the offensive provision or limiting application of the offence to situations where there is a service connection and the need to maintain military discipline. The Scrutiny of Bills Committee also raised concern over the appropriateness of what a reasonable person would regard as the offensive use of a social media service or an electronic service. In moving this amendment, the government has listened to the concerns raised by these committees, and in response has proposed this amendment to the cyberbullying offence to omit 'as offensive or' and to substitute 'in all the circumstances'.
~~Nick McKim~~
~~I wish to place on the record the Greens' opposition to this amendment.~~
~~Jacqui Lambie~~
I would like to put our opposition to this amendment on record as well, please.
~~Kimberley Kitching~~
Labor knows that the government has proposed an amendment to the new cyberbullying offence in the Defence Legislation Amendment (Discipline Reform) Bill 2021, set out at new section 48A. The effect of this would be that cyberbullying offences would apply when a defence member has used a social media service or relevant electronic service in a way that a reasonable person would regard in all the circumstances as threatening, intimidating, harassing or humiliating another person, but would not necessarily regard as offensive. The government says this is a response to concerns raised by the Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights.
Labor will be opposing the amendment. In terms of the substance, we are concerned that the amendment narrows and weakens the proposed cyberbullying offence. Indeed, the government's own supplementary explanatory memorandum to the amendment acknowledges as much. We understand the issue that the minister is trying to address here but we are broadly satisfied with the interpretive guidance that has been provided in response to the questions from the Parliamentary Joint Committee on Human Rights about proportionality in relation to this new offence. Labor will not be supporting the amendment because we do not think that removing the word 'offensive' will have the desired overall effect of reflecting the reality of cyberbullying—that is, that a lot of it does come down to offence, or content that is considered offensive. The amendment appears to rely on a libertarian freedom of expression or free speech argument that we believe is inconsistent with the need to maintain a strong system of military discipline, which is the objective of the overall bill. Labor may be open to retaining the words 'in all the circumstances as threatening, intimidating, harassing or humiliating', but we think it's essential to retain the word 'offensive'. Otherwise, this risks watering down the offence.
In terms of process and consultation, we are also disappointed that the government has tried to ram this amendment through at the eleventh hour. This amendment was known about for some time, but the government provided us with it and the supplementary explanatory memorandum only yesterday, potentially only an hour or so before the bill could have been debated. This is not simply a minor or technical amendment, so this was not enough time to consider properly the proposed change.
~~Deborah O'Neill~~
~~The question is that the amendment be agreed to.~~
~~~~
~~~~
The majority voted against an [amendment](https://www.openaustralia.org.au/senate/?id=2021-12-01.186.1) introduced by NSW Senator [Marise Payne](https://theyvoteforyou.org.au/people/senate/nsw/marise_payne) (Liberal), which means it failed. It concerned the cyber-bullying service offence.
Senator Payne [explained that](https://www.openaustralia.org.au/senate/?gid=2021-12-01.186.2):
> *The purpose of this amendment is to insert the term 'in all the circumstances' and to remove the word 'offensive' from the new cyberbullying offence set out in clause 2 of schedule 3 of the bill. A cyberbullying offence will apply when a defence member has used a social media service or relevant electronic service in a way that a reasonable person would regard in all the circumstances as threatening, intimidating, harassing or humiliating another person.*
### Amendment text
> *(1) Schedule 3, item 2, page 48 (line 2), omit "as offensive or", substitute "in all the circumstances".*
### What does the bill do?
According to the [bills digest](https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd2122a/22bd033), the purpose of the bill is "*to improve and simplify the operation of the military discipline system by:*
* *removing the subordinate summary authority and restructuring the summary authorities to simplify the process for dealing with minor disciplinary issues*
* *expanding the disciplinary infringement scheme to deal more effectively with minor breaches of discipline*
* *introducing new service offences in relation to the failure to perform a duty or carry out an activity, cyber-bullying and failure to notify change in circumstances particularly with regard to receipt of benefits and allowances.*"