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Australian Parliamentary Joint Committee on Human Rights |
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Purpose
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This bill seeks to amend the Defence Force Discipline Act 1982
to:
· expand the operation of the disciplinary infringement scheme in
dealing with minor breaches of military discipline;
· remove the subordinate summary authority, to reduce the number of
summary authority levels; and
· introduce several new service offences relating to failure to
perform duty or carry out activity, cyber-bullying, and failure
to notify change
in circumstances concerning the receipt of a benefit or allowance
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Portfolio
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Defence
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Introduced
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House of Representatives, 12 August 2021
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Rights
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Freedom of expression
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1.19 The bill proposes to make a number of new service offences that would apply to Australian Defence Force (ADF) personnel. This includes making it an offence for a defence member to use a social media service or relevant electronic service (such as email, text or chat messages), 'in a way that a reasonable person would regard as offensive or as threatening, intimidating, harassing or humiliating another person'. The maximum punishment would be imprisonment for two years.[2]
1.20 In addition, if a defence member is convicted of this offence a service tribunal can make an order that the member take reasonable action to remove, retract, recover, delete or destroy the material.[3] A failure to comply with such an order would also be an offence punishable by up to two years imprisonment.[4]
1.21 Making it a service offence for an ADF member to use social media, or send text messages or emails, that might offend a reasonable person, engages and limits the right to freedom of expression. This right includes the freedom to seek, receive and impart information and ideas of all kinds, either orally, in writing or print, in the form of art, or through any other media of an individual's choice.[5] The right to freedom of expression protects all forms of expression and the means of their dissemination, including spoken, written and sign language and non-verbal expression, such as images and objects of art.[6] This right embraces expression that may be regarded as deeply offensive.[7] This right may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.
1.22 The statement of compatibility recognises that freedom of expression is engaged and limited, but says the proposed offence 'is necessary, reasonable and proportionate for the maintenance or enforcement of service discipline of Australian Defence Force personnel'.[8] The explanatory memorandum provides further detail regarding the need for this offence. It states that cyber-bullying 'is conduct that is corrosive to good order and discipline; it is contrary to the Defence Value of respect towards others and has a negative impact on the morale, operational effectiveness, and reputation of the ADF'. It goes on to explain that commanders in the ADF are responsible for ensuring the discipline of ADF members and for the safety, health and well-being of people under their command '24 hours a day, seven days a week'. As such, instances of cyber-bullying within the ADF 'need to be dealt with quickly by commanders to minimise the impact not only on individuals, but also to the morale and operational effectiveness of the ADF more generally'.[9]
1.23 Maintaining or enforcing military service discipline would be likely to constitute a legitimate objective for the purposes of international human rights law, and having an enforceable service cyber-bullying offence may be rationally connected to that objective. A key aspect of whether a limitation on a right can be justified is whether the limitation is proportionate to the objective being sought. In this respect, it is necessary to consider a number of factors, including whether a proposed limitation is sufficiently circumscribed; whether it is accompanied by sufficient safeguards; and whether any less rights restrictive alternatives could achieve the same stated objective. In this respect the explanatory materials accompanying the bill are silent.
1.24 It is noted that the proposed service offence applies broadly to where a defence member uses a social media service or relevant electronic service in a way that a reasonable person would regard 'as offensive or as threatening, intimidating, harassing or humiliating another person'. While threatening, intimidating, harassing or humiliating another person would appear to be limited to serious online abuse, the proposed service offence of using a service in a way that is 'offensive' to a reasonable person may be employed in relation to conduct with effects that range from slight to severe, and could capture a large range of uses that may not constitute cyber-bullying.
1.25 The right to freedom of expression, to be meaningful, protects both popular and unpopular expression and ideas, including expression that may be regarded as deeply offensive (so long as it does not constitute hate speech).[10] The term 'offensive' has been the subject of extensive consideration in existing areas of Australian law. The High Court of Australia has noted that, 'offensiveness is a protean concept which is not readily contained unless limited by a clear statutory purpose and other criteria of liability'.[11] It has further stated that the modern approach to interpretation—particularly in the case of general words—requires that the context be considered in the first instance: '[w]hilst the process of construction concerns language, it is not assisted by a focus upon the clarity of expression of a word to the exclusion of its context'.[12]
1.26 In Monis v R, the High Court considered the meaning of the term 'offensive' within the context of the alleged offence of using a postal service in a way that reasonable persons would regard as being, in all the circumstances, 'menacing, harassing or offensive'.[13] In that instance, Justices Crennan, Kiefel and Bell guided that the terms 'menacing, harassing or offensive' must be considered together:
It is true that a communication which has the quality of being menacing or harassing can be seen to be personally directed and deliberately so. An offensive communication may have those qualities; it may not...Importantly, the grouping of the three words and their subjection to the same objective standard of assessment for the purposes of the offences in s 471.12 suggests that what is offensive will have a quality at least as serious in effect upon a person as the other words convey. The words "menacing" and "harassing" imply a serious potential effect upon an addressee, one which causes apprehension, if not a fear, for that person's safety. For consistency, to be "offensive", a communication must be likely to have a serious effect upon the emotional well-being of an addressee.[14]
1.27 Section 18C of the Racial Discrimination Act 1975 similarly prohibits an act done on the basis of race or colour that is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate. In this context, having had regard to the collective phrase 'offend, insult, humiliate or intimidate', Australian courts have considered that this establishes an objective test of whether the act is reasonably likely to have a 'profound and serious effect', in all the circumstances, and is not to be likened to mere slights.[15]
1.28 The Online Safety Act 2021, which was recently enacted, also gives powers to take down material from websites where an ordinary reasonable adult would regard the material as being, in all the circumstances, 'menacing, harassing or offensive', and that it is likely that the material was intended to have an effect of causing serious harm.[16]
1.29 In contrast, this proposed offence uses different wording that separates out the term 'offensive' from the terms 'threatening, intimidating, harassing or humiliating'. The explanatory memorandum states that this proposed provision differs from similar civilian criminal legislation in that there is no requirement for the cyber-bullying conduct to be 'serious'. It states this distinction is important as 'the availability of this service offence supports the maintenance and enforcement of discipline through deterrence of such conduct by members, which is distinct from the civilian criminal law provisions dealing with criminal behaviour'.[17] However, while the fact that this service offence does not result in a criminal conviction may operate in some respects to safeguard its proportionality, it still could lead to a penalty of up to two years imprisonment being imposed. In addition, it is noted that charges under the ADF's military discipline law system appear able to be laid even in circumstances where the offending conduct occurs outside of what might ordinarily be considered a military context.[18] As such, making it a service offence for an ADF member to, in potentially even a non-military context, post anything on social media, or via email or text message, that a reasonable person may regard as offensive, would appear to be a significant limit on an ADF member's right to freedom of expression.
1.30 It is also not clear whether there are any safeguards in place to protect an ADF member's right to freedom of expression, to ensure speech is not disproportionately restricted. The explanatory memorandum states that the new service offence will enable less serious disciplinary breaches of cyber-bullying to be dealt with by a summary authority, and for more serious breaches, by court martial or Defence Force magistrate, with referral to civilian authorities remaining an option for matters that may constitute a criminal offence.[19] However, as a matter of law all types of uses may be subject to up to two years imprisonment, with no gradients provided as to the level of seriousness. It is also not clear why the current approach to dealing with cyber-bullying, including relying on existing criminal offences, has not proved effective, and whether there are any less rights restrictive ways to achieve the same objective.
1.31 In order to assess the proportionality of this measure with the right to freedom of expression, further information is required, and in particular:
(a) what type of use is likely to be considered 'offensive' for the purposes of proposed section 48A;
(b) is it intended that the term 'offensive' will be considered together with the terms 'threatening, intimidating, harassing or humiliating', or is it intended to have a stand-alone meaning, and, if so, is it intended that this would capture uses that a reasonable person would merely find offensive, without necessarily any profound and serious effects;
(c) could this service offence apply to ADF members in their personal capacity where the offensive use has no, or little, link to their ADF service;
(d) what safeguards are in place to ensure the proposed service offence does not unduly restrict an ADF member's freedom of expression; and
(e) what other, less rights restrictive approaches would be available to achieve the stated objective. In this respect, further information is required as to the approach currently taken to deal with cyber-bullying in the ADF and why this has proved not to be effective to achieve the objective of maintaining military discipline.
1.32 The committee notes this bill seeks to make it an offence for Australian Defence Force members to use a social media service or relevant electronic service (such as email, text or chat messages), 'in a way that a reasonable person would regard as offensive or as threatening, intimidating, harassing or humiliating another person'. The maximum punishment would be imprisonment for two years.
1.33 The committee considers that this measure engages and limits the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds, including expression that may be regarded as offensive. This right may be subject to permissible limitations if they are shown to be reasonable, necessary and proportionate.
1.34 The committee considers that the measure seeks to achieve the legitimate objective of maintaining or enforcing military service discipline, and the proposed offence may be effective to achieve this. However, questions remain as to whether the measure is proportionate.
1.35 The committee has not yet formed a concluded view in relation to this matter. It considers further information is required to assess the human rights implications of this measure, and as such seeks the minister's advice as to the matters set out at paragraph [1.31].
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Defence Legislation Amendment (Discipline Reform) Bill 2021, Report 10 of 2021; [2021] AUPJCHR 92.
[2] Schedule 3, item 2, proposed section 48A.
[3] Schedule 3, item 5, proposed section 84A.
[4] Schedule 3, item 2, proposed section 48B.
[5] International Covenant on Civil and Political Rights, article 19(2).
[6] UN Human Rights Committee, General Comment No. 34, Article 19: Freedoms of opinion and expression (2011) [12].
[7] UN Human Rights Committee, General Comment No. 34, Article 19: Freedoms of opinion and expression (2011) [11]. This is subject to the provisions of article 19(3) and article 20 of the International Covenant on Civil and Political Rights. Article 19(3) states that the right to freedom of expression carries with it special duties and responsibilities, and may be subject to restrictions but only such that are provided by law and are necessary for respecting the rights or reputations of others, or to protect national security, public order, public health or morals. Article 20 provides any propaganda for war, and advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited.
[8] Statement of compatibility, [40].
[9] Explanatory memorandum, in the discussion regarding Schedule 3, item 2, proposed section 48A.
[10] See UN Human Rights Committee, General Comment 34: Freedom of opinion and expression (2011) [11].
[11] Monis v R; Droudis v R [2013] HCR 4 [47] per French CJ. Gleeson CJ (dissenting) in Coleman v Power [2004] HCA 39 further commented that concepts of what is offensive will vary within time and place, and may be affected by the circumstances in which the relevant conduct occurs, at [12].
[12] Monis v R; Droudis v R [2013] HCR 4 [309] (per Crennan, Kiefel and Bell JJ). See also K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309 [315] per Mason J; and Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 CLR 355 [381].
[13] Pursuant to section 471.12 of the Criminal Code Act 1995.
[14] Monis v R; Droudis v R [2013] HCR 4 [310].
[15] Creek v Cairns Post [2001] FCA 1007 [16]. See also, Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16; (2004) 135 FCR 105 [131]; Jones v Scully [2002] FCA 1080; (2002) 120 FCR 243 [102]; and Eatock v Bolt [2011] FCA 1103; (2011) 197 FCR 261 at [267]- [268].
[16] Online Safety Act 2021, section 7.
[17] Explanatory memorandum, in the discussion regarding Schedule 3, item 2, proposed section 48A.
[18] See Private R v Cowen [2020] HCA 31.
[19] Explanatory memorandum, in the discussion regarding Schedule 3, item 2, proposed section 48A.
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