This bill implements recommendation 18 of the 2024 Statutory Review of the Online Safety Act 2021. The primary objective is to address the low success rate of complaints under the existing adult cyber abuse scheme, where currently only approximately six per cent of reports meet the legislated threshold for intervention.
The bill amends Section 7 and Section 8 of the Act to recalibrate the two-part test for cyber abuse. Firstly, it omits the words "of causing serious harm" from the intent test. From the explanatory memo:
This would mean that the threshold is lowered so that a reasonable person need only conclude... that it was likely that the material was intended to have an effect on a particular Australian adult.
Secondly, to prevent overreach, the bill requires that the material be "seriously offensive" rather than merely "offensive." This new standard is defined as material that represents a "significant departure from the standards of morality, decency and propriety generally accepted by reasonable adults" [Explanatory Memorandum page 4]. The bill specifies that these changes will apply to all material currently accessible online, as well as new material provided after the bill's commencement, ensuring that ongoing complaints can be assessed against the updated criteria.
The current legislative framework for adult cyber abuse is failing to meet its intended purpose. When 94% of reports to the eSafety Commissioner are rejected because the "serious harm" threshold is too high, it signals that the law is out of step with the reality of online harassment [1]. This bill corrects that imbalance by shifting the focus from the subjective degree of harm suffered by a victim to the objective intent of the perpetrator and the heinous nature of the content itself [Judgment].
By removing the "serious harm" requirement, the regulator can intervene in persistent harassment campaigns before they escalate into life-altering psychological trauma. The introduction of the "seriously offensive" test ensures that the eSafety Commissioner's powers are not used to police minor social frictions, but are instead reserved for material that represents a significant departure from community standards [Judgment]. This is a necessary and proportionate response to protect citizens in an era where digital abuse is increasingly sophisticated and pervasive.
According to the eSafety Commissioner's spokesperson as cited in the Explanatory Memorandum, only six per cent of reports currently meet the legislated threshold.
While the bill aims to reduce online abuse, it does so by introducing dangerously vague legal standards that threaten free speech. Replacing the "serious harm" requirement with a test based on "intent to have an effect" significantly expands the state's power to censor online content. Almost any robust political criticism or social commentary is intended to have an "effect" on the subject, making the distinction between legitimate discourse and "abuse" highly precarious [Judgment].
Furthermore, the reliance on "standards of morality, decency and propriety" as a benchmark for what is "seriously offensive" is inherently subjective. These standards are not monolithic in a multicultural, pluralistic society like Australia. Tasking a single regulator with determining what constitutes a "significant departure" from these amorphous values risks creating a "chilling effect" on speech, where users self-censor to avoid falling foul of an unpredictable administrative standard [Judgment]. Without the objective anchor of "serious harm," the law risks becoming a tool for the suppression of unpopular or controversial opinions under the guise of maintaining community decency.
2026-03-03
Senate
Before Senate
PAYMAN, Sen Fatima
Unspecified
Media / Advertising, Discrimination / Human Rights, Science / Technology