Internet freedom in Australia remained relatively robust during the coverage period. The country’s information and communication technology (ICT) infrastructure is well-developed, and access is affordable and widely available. The government does not restrict internet or mobile connectivity and does not block political or social content online. However, legal developments—including the passage of the Online Safety Act and a series of amendments facilitating increased surveillance and undermining encryption—shrank the space for free expression online. Domestic political parties spread disinformation online ahead of the May 2022 federal election.
Australia is a democracy with a strong record of advancing and protecting political rights and civil liberties. Challenges to these freedoms have included the threat of foreign political influence, harsh policies toward asylum seekers, discrimination against LGBT+ people, increasingly stringent checks against the press, and ongoing difficulties ensuring the equal rights of First Nations Australians.
- In June 2021, Parliament passed the Online Safety Act, expanding Australia’s notice-and-takedown regime, enabling additional website blocking, facilitating increased access to user data, and giving new powers to the eSafety Commissioner (see B3 and C6).
- Online disinformation emanating from domestic political parties proliferated ahead of the May 2022 federal election (see B5).
- In May 2022, whistleblower reporting exposed that Facebook intentionally created a broad takedown process that would impact nonnews content as a negotiating tactic after the February 2021 enactment of the News Media and Digital Platforms Bargaining Code (see B7).
- Parliament passed the Surveillance Legislation Amendment (Identify and Disrupt) Act, which expands the country’s surveillance regime, and the Telecommunications Legislation Amendment (International Production Orders) Act 2020, which gives the government the ability to access encrypted information from non-Australian companies. In April 2022, the Data Availability and Transparency Bill came into effect, which significantly broadened the government’s powers to share individuals’ personal data among its agencies (see C4 and C5).
|Do infrastructural limitations restrict access to the internet or the speed and quality of internet connections?||6.006 6.006|
There are few infrastructural limitations on internet access or speeds. The country has a high internet penetration rate; 91 percent of Australian adults had a home internet connection as of June 2021, according to the Australian Communications and Media Authority.1 Around three-quarters of Australians are connected to the internet via the National Broadband Network (NBN), which was declared built and operational in late 2020. Upgrades are ongoing, including those expanding fiber-optic connections.2
The NBN has seen some success in delivering faster connections to more residents at lower costs but has been dogged by complaints and delays. Many Australian homes do not have full fiber-optic cable connection to the NBN, instead dealing with partial connections and a patchwork of other infrastructure technologies and their associated connectivity issues.3 By July 2022, approximately 12.1 million premises were ready to connect to the fiber-optic network, while approximately 8.5 million premises already had activated connections.4
The majority of NBN broadband services operated in 2022 (over 75 percent) on wholesale speed-tiers of 50 megabits per second (Mbps).5 As of June 2022, Ookla’s Speedtest Global Index ranked Australia 66th in the world for fixed-line broadband internet speeds and 12th in the world for mobile broadband internet speeds—both lower than the year prior.6
Most Australians are now covered by third-generation (3G) and fourth-generation (4G) mobile networks. Fifth-generation (5G) technology rollout is underway and progressing beyond major cities to inner regional areas.7 As of June 2021, Telstra, the largest 5G network provider, claimed to reach 75 percent of Australians.
- 1“Communications and media in Australia: How we use the internet,” Australian Communications and Media Authority, December 2021, https://www.acma.gov.au/publications/2021-12/report/communications-and-…
- 2‘Communications market report 2020-21,’ ACCC, December 2021, p vii, https://www.accc.gov.au/system/files/Communication%20Monitoring%20repor…
- 3Jack Snape, ‘The NBN rollout is complete but one couple looking to upgrade found better internet via a garden shed,” ABC News, 16 January 2021, https://www.abc.net.au/news/2021-01-16/nbn-rollout-finished-complete-gr…
- 4NBN Co Limited, “Weekly progress report,” July 14, 2022, https://www.nbnco.com.au/corporate-information/about-nbn-co/corporate-p….
- 5Monthly Progress Report, NBN, February 2022, https://www.nbnco.com.au/content/dam/nbn/documents/how-we-are-tracking/…
- 6Speedtest, “Speedtest Global Index: Global Speeds May 2021,” April 2022, https://www.speedtest.net/global-index
- 7Mobile Infrastructure Report 2021, ACCC, 2 December 2021, https://www.accc.gov.au/regulated-infrastructure/communications/mobile-…
|Is access to the internet prohibitively expensive or beyond the reach of certain segments of the population for geographical, social, or other reasons?||2.002 3.003|
Internet access is affordable for most Australians. The gradual shift to NBN services across the country is resulting in greater competition among internet service providers (ISPs), higher-quality connections, and improved speeds.1
According to the Australian Digital Inclusion Index, equity in access to and use of digital technologies generally improved in 2021, as compared to the year prior.2 Australia ranks 8th out of 100 countries surveyed in the Economist Intelligence Unit’s 2022 Inclusive Internet Index in terms of the affordability of prices for internet connections.3 However, cost of services remain a point of concern for many; 14 percent of Australians would have to spend over 10 percent of their household income in order to receive a reliable connection.4
A marked digital divide between urban and nonurban areas persists, though it is narrowing. Socially disadvantaged Australians, including mobile-only users and people who rent from public housing authorities, were among those who saw the least improvement in digital inclusion compared to other groups in 2021.5
First Nations Australians generally have a lower level of digital inclusion, with affordability remaining a key barrier to access, though this has improved over time.6 In September 2021, the government published an Indigenous Digital Inclusion Plan (IDIP) paper and announced its intention to hold multistakeholder consultations throughout the year, with the ultimate objective of developing a plan to promote digital inclusion for First Nations peoples.7
- 1Australian Communications and Media Authority (ACMA), “Communications Report 2017-18,” February 15, 2019, https://www.acma.gov.au/publications/2019-02/report/communications-repo….
- 2Australian Digital Inclusion Index, “Measuring Australia’s Digital Divide: Australian Digital Inclusion Index 2021,” 2021, https://h3e6r2c4.rocketcdn.me/wp-content/uploads/2021/10/ADII_2021_Summ….
- 3The Economist Intelligence Unit, “The Inclusive Internet Index 2022: Affordability Ranking,” accessed July 25, 2022, https://theinclusiveinternet.eiu.com/explore/countries/AU/performance/i….
- 4Australian Digital Inclusion Index, “Measuring Australia’s Digital Divide: Australian Digital Inclusion Index 2021,” 2021, https://h3e6r2c4.rocketcdn.me/wp-content/uploads/2021/10/ADII_2021_Summ….
- 5Australian Digital Inclusion Index, “Measuring Australia’s Digital Divide: Australian Digital Inclusion Index 2021,” 2021, https://h3e6r2c4.rocketcdn.me/wp-content/uploads/2021/10/ADII_2021_Summ…;
- 6Australian Digital Inclusion Index, “Measuring Australia’s Digital Divide: Australian Digital Inclusion Index 2019, https://www.csi.edu.au/media/2019_ADII_Report.pdf.
- 7“Indigenous Digital Inclusion Plan,” NIAA, September 2021, https://www.niaa.gov.au/sites/default/files/publications/indigenous-dig…; “Indigenous Digital Inclusion Plan (IDIP),” NIAA, https://www.niaa.gov.au/indigenous-affairs/economic-development/indigen…
|Does the government exercise technical or legal control over internet infrastructure for the purposes of restricting connectivity?||6.006 6.006|
The government does not impose restrictions on internet connectivity or mobile networks. Australia is connected to the international internet through undersea cables that are not controlled by the government.1 Domestically, internet traffic flows through either commercial or nonprofit internet exchange points (IXPs)2 located in most major cities.3
Under the iCode, a set of voluntary cybersecurity guidelines for ISPs, internet connectivity may be temporarily restricted for users whose devices have become part of a botnet—an array of computers that have been hijacked for use in coordinated cyberattacks or spam distribution—or are at high risk of being infected with malicious software. Such users may have their internet service temporarily throttled or find themselves in a “walled garden,” or quarantine, until they have communicated with their ISP and restored security.4
The 1997 Telecommunications Act places obligations on providers to assist authorities in certain circumstances, including restricting the provision of services in emergencies.5
- 1TeleGeography, “Submarine Cable Map,” accessed April 21, 2022, https://www.submarinecablemap.com/#/country/australia.
- 2Packet Clearing House (PCH), “Internet Exchange Directory,” accessed April 21, 2022, https://www.pch.net/ixp/dir#!mt-filters=%7B%22ctry%22%3A%5B%22dropdown%….
- 3International Telecommunication Union (ITU), “Measuring the Information Society Report Volume 2 - 2018,” accessed October 2, 2020, https://www.itu.int/en/ITU-D/Statistics/Documents/publications/misr2018….
- 4Communications Alliance, “Internet Service Providers Voluntary Code of Practice for Industry Self-Regulation in the Area of Cybersecurity,” 2014, https://www.commsalliance.com.au/__data/assets/pdf_file/0019/44632/C650….
- 5Federal Register of Legislation, “Telecommunications Act 1997,” March 2, 2019, https://www.legislation.gov.au/Details/C2019C00104. See Sections 313-315 and Divisions 3 and 4.
|Are there legal, regulatory, or economic obstacles that restrict the diversity of service providers?||5.005 6.006|
The ISP sector is free of major legal, regulatory, and economic obstacles that might restrict the diversity of service providers. However, telecommunications giant Telstra has consistently held the largest share of the mobile and broadband markets.
Australia hosts a competitive market for internet access, with at least 195 providers of the NBN as of mid-2022.1 Telstra commands over 44 percent of the fixed-line broadband market, with TPG, Optus, and Vocus holding smaller shares.2 All four leading ISPs sell NBN connections. As of 2020, the top three mobile network operators (Telstra, Optus, and TPG, which merged with Vodafone in 2020) accounted for 91 percent of the total retail mobile phone market.3
There are several smaller ISPs that act as “virtual” providers, maintaining only a retail presence and offering end users access through the network facilities of other companies. These “carriage service providers” do not require a license.4 The Australian Communications and Media Authority (ACMA) issues operating licenses that larger ISPs that own telecommunications infrastructure, or “carriers,” are required to obtain (see A5). Carriers must go through the independent Telecommunications Industry Ombudsman (TIO) dispute resolution process to resolve complaints from customers.5
- 1List of phone and internet providers, NBN, https://www.nbnco.com.au/residential/service-providers
- 2“NBN Wholesale Market Indicators Report,” ACCC, February 22, 2022, https://www.accc.gov.au/regulated-infrastructure/communications/nationa…
- 3“Communications market report 2020-21,” ACCC, December 2021, p x, https://www.accc.gov.au/system/files/Communication%20Monitoring%20repor…
- 4Australian Communications and Media Authority (ACMA), “Know your obligations: Carriers and carriage service providers, including internet and VoIP service providers,” November 14, 2019, https://www.acma.gov.au/sites/default/files/2019-11/Know%20Your%20Telec….
- 5Australian Communications and Media Authority (ACMA), “Know your obligations: Carriers and carriage service providers, including internet and VoIP service providers.”
|Do national regulatory bodies that oversee service providers and digital technology fail to operate in a free, fair, and independent manner?||4.004 4.004|
The ACMA is the primary regulator for the broadcasting, internet, and telecommunications sectors.1 Its oversight is generally viewed as fair and independent. ACMA members are formally appointed by the governor general of Australia for five-year terms.2
Australian ISPs are coregulated under the Broadcasting Services Act (BSA) of 1992, which combines regulation by the ACMA with self-regulation by the telecommunications industry.3 The industry’s involvement entails developing industry standards and codes of practice.4 There are more than 30 self-regulatory codes that govern and regulate the country’s ICT sector. ACMA approves self-regulatory codes produced by the Communications Alliance, Australia’s main telecommunications industry body.5
Small businesses and residential customers may file complaints about internet, telephone, and mobile phone services with the TIO,6 which operates a free and independent dispute resolution mechanism.
- 1Australian Communications and Media Authority (ACMA), “Organizational Structure,” November 2019, https://www.acma.gov.au/sites/default/files/2019-11/ACMA-organisational…; Australian Communications and Media Authority (ACMA), “Corporate Plan 2019-20: For the period 2019-20 to 2022-23,” 2019, https://www.acma.gov.au/sites/default/files/2019-08/ACMA%20corporate%20….
- 2Federal Register of Legislation, “Australian Communications and Media Authority Act 2005,” September 1, 2018, https://www.legislation.gov.au/Details/C2018C00353.
- 3Federal Register of Legislation, “Australian Communications and Media Authority Act 2005.”; Federal Register of Legislation, “Broadcasting Services Act 1992,” December 12, 2019, https://www.legislation.gov.au/Details/C2019C00338; Australian Communications and Media Authority (ACMA), “Carriers and carriage service providers,” accessed October 2, 2020, https://www.acma.gov.au/Industry/Telco/Carriers-and-service-providers/L….
- 4Chris Connelly and David Vaile, “Drowning in Codes: An Analysis of Codes of Conduct Applying to Online Activity in Australia,” Cyberspace Law and Policy Centre, March 2012, https://web.archive.org/web/20190424165545/http://cyberlawcentre.org/on….
- 5Communications Alliance, “Internet Service Provider Industry,” accessed October 2, 2020, https://www.commsalliance.com.au/Activities/ispi.
- 6“Home Page,” Telecommunications Industry Ombudsman, accessed October 2, 2020, http://www.tio.com.au.
|Does the state block or filter, or compel service providers to block or filter, internet content, particularly material that is protected by international human rights standards?||5.005 6.006|
Political and social content is rarely subject to blocking, and communications applications and social media are freely available. However, popular websites that frequently host copyright-infringing material, including Pirate Bay and Kickass Torrents, were blocked by two Federal Court judgments from 2016 and 2017.1 Owners of copyrighted material periodically obtain orders from the Federal Court blocking copyright-infringing websites. An April 2020 Federal Court decision ordered carriage service providers to block a range of copyright-infringing websites, most of which were pirate torrenting and streaming websites.2
Although the Australian government did not order any website blocks in the wake of the March 2019 terrorist attack in Christchurch, New Zealand—which was perpetrated by an Australian— several major Australian ISPs temporarily restricted access to 43 sites,3 including 4chan, 8chan, LiveLeak, Voat, ZeroHedge, and other smaller websites that were believed to be hosting or sharing recordings of the attacker’s live streamed video.4 The ISPs initially acted independently, but they later coordinated with the ACMA and other government agencies.5 The restrictions reportedly remained in effect until September 2019, when the Office of the eSafety Commissioner permitted ISPs to undo the blocks on all but eight unspecified websites that continued to let viewers watch the video.6
In 2020–21, the eSafety Commissioner called for over 14,000 URLs to be prohibited or potentially prohibited, 99 percent of which hosted content that met the definition of child sexual abuse imagery. The eSafety Commissioner reported that content hosted overseas was referred to vendors of software filters.7
In November 2019, the Australian government introduced a website blocking scheme, permitting the ACMA to request that ISPs block illegal gambling websites under Section 313(3) of the 1997 Telecommunications Act.8 The ACMA had requested that ISPs block at least 206 such websites in 2020–21.9
- 1Federal Court of Australia, “Roadshow Films Pty Ltd v Telstra Corporation Ltd  FCA 1503,” December 15, 2016, https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/20…; Federal Court of Australia, “Universal Music Australia Pty Limited v TPG Internet Pty Ltd  FCA 435,” April 28, 2017, https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/20….
- 2Federal Court of Australia, “Roadshow Films Pty Limited v Telstra Corporation Limited  FCA 507,” April 20, 2020, https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/20….
- 3Josh Taylor, “Australian internet providers told to block websites hosting Christchurch terror video,” The Guardian, September 8, 2019, https://www.theguardian.com/technology/2019/sep/09/australian-internet-….
- 4Jon Brodkin, “4chan, 8chan blocked by Australian and NZ ISPs for hosting shooting video,” Ars Technica, March 20, 2019, https://arstechnica.com/tech-policy/2019/03/australian-and-nz-isps-bloc….
- 5“Telcos block access to websites continuing to host Christchurch terror footage,” SBS News, March 19, 2019, https://www.sbs.com.au/news/telcos-block-access-to-websites-continuing-…; Jennifer Duke, “Telco giants block websites sharing footage of Christchurch attacks,” The Sydney Morning Herald, March 18, 2019, https://www.smh.com.au/business/companies/telco-giants-block-websites-s….
- 6“Protecting Australians from terrorist material online,” eSafety Commissioner, September 9, 2019, https://www.esafety.gov.au/about-us/newsroom/protecting-australians-ter….
- 7“Annual Reports,” eSafety Commissioner, 2020-2021, https://www.esafety.gov.au/sites/default/files/2021-10/ACMA%20and%20eSa….
- 8“Media Release: Taking action against illegal offshore gambling websites,” Paul Fletcher MP, November 11, 2019, https://www.paulfletcher.com.au/media-releases/media-release-taking-act….
- 9“Annual Reports,” eSafety Commissioner, 2020-2021, https://www.esafety.gov.au/sites/default/files/2021-10/ACMA%20and%20eSa…
|Do state or nonstate actors employ legal, administrative, or other means to force publishers, content hosts, or digital platforms to delete content, particularly material that is protected by international human rights standards?||2.002 4.004|
Online content protected under international human rights standards is generally free from interference by state and nonstate actors. However, the courts at times attempt to inhibit publication of defamatory material on large social media platforms and search engines.
In 2019, Parliament adopted the Sharing of Abhorrent Violent Material Act (see B3), which amended the criminal code to enforce the removal of a new category of online content, namely “abhorrent violent material.” The eSafety Commissioner reported that in 2020 and 2021, it issued five notices under this law to content or hosting services in relation to material provided via their service.1
In its most recent transparency report, covering July to December 2021, Facebook disclosed that it had restricted access to 188 items of content in Australia, an increase from the period prior.2 Of these, 21 items were removed globally in response to a court order from Brazil; 82 items were related to private reports of defamation; 81 items were in response to valid court orders; and 25 items were in response to reports submitted by the Therapeutic Goods Administration. During the same period, Google received 833 content removal requests. The company removed 489 items, including those made on grounds including bullying and harassment (285 requests), defamation (28), nudity or obscenity (20), and copyright (19).3 Twitter received two takedown requests in Australia in the same period and complied with one.4
The June 2021 passage of the Online Safety Act, which sparked civil society concern about its potential disproportionate effect on content from marginalized groups, has led to the removal of online content.5 In February 2022, a sex-work friendly social media platform known as Switter announced that it would shut down due to legal concerns over its ability to protect users and comply effectively and ethically with various online safety bills and defamation laws proposed and passed in Australia, as well as in the United States and the United Kingdom. In Switter’s public statement, the platform explicitly cited its concern “about the powers that have been created and granted to the eSafety Commissioner as a part of the introduction of the Online Safety Act […].”6
Recent court cases involving Google’s search results and autocomplete predictions have sought to clarify how Australia’s defamation laws are applied to online content. In April 2020, the Supreme Court of Victoria ruled in favor of lawyer George Defteros in a defamation case against Google and ordered the company pay Defteros AU$40,000 ($28,500) in damages.7 In January 2022, Google filed an appeal to the case, warning that it would be forced to censor search results if the ruling, which would hold the search engine liable for allegedly defamatory content contained in hyperlinks, is not overturned. 8 Previously, in 2018, the High Court of Australia ruled in favor of Milorad Trkulja in a defamation case against Google.9 Although a lower court had dismissed the case, the High Court agreed with the appellant that autocomplete predictions and image searches related to his name could convey to an ordinary, reasonable person that Trkulja was linked to the criminal underworld.10
In a 2017 case involving a breach of confidential information, Twitter was ordered to prevent an offending user from creating any future accounts or posts, with worldwide effect. The Supreme Court of New South Wales Justice Michael Pembroke issued a global injunction against Twitter in relation to a series of posts published by an anonymous user that revealed confidential information about the plaintiff, an unidentified company. The court compelled the platform to prevent any future publication of the offending material and to remove all content associated with the user and information in question.
- 1Australian Communications and Media Authority (ACMA), “Annual Reports: 2019-2020,” https://www.esafety.gov.au/sites/default/files/2020-10/ACMA%20and%20eSa….
- 2Facebook Transparency, “Content Restrictions: Australia Country Overview,” accessed April 18, 2022, https://transparency.facebook.com/content-restrictions/country/AU.
- 3Google, “Government requests to remove content: Australia,” Transparency Report, accessed October 9, 2022, https://transparencyreport.google.com/government-removals/by-country/AU.
- 4Twitter Transparency, “Australia,” Transparency Report, accessed October 9, 2022, https://transparency.twitter.com/en/countries/au.html
- 5Australia: Online Safety Bill Passed,” Library of Congress, August, 8, 2021, https://www.loc.gov/item/global-legal-monitor/2021-08-10/australia-onli…; “Australia: The scope of the Online Safety Act,” Data Guidance, February 2022, https://www.dataguidance.com/opinion/australia-scope-online-safety-act#….
- 6Assembly Four, Assembly Four announces closure of Sex Work friendly social media platform Switter,” February 14, 2022, https://assemblyfour.com/switter-public-statement; Josh Taylor, “‘Now we don’t have a safe place’: sex workers’ social media site Switter shuts down amid legal fears,” The Guardian, February 14, 2022, https://www.theguardian.com/australia-news/2022/feb/15/now-we-dont-have…
- 7“Melbourne gangland lawyer George Defteros wins defamation case against Google,” The Guardian, April 30, 2020, https://www.theguardian.com/media/2020/apr/30/melbourne-gangland-lawyer…
- 8Paul Karp, “Google warns of devastating court ruling on defamatory hyperlinks not overturned,” 23 January 2022, https://www.theguardian.com/technology/2022/jan/24/google-warns-of-deva…
- 9Columbia University: Global Freedom of Expression, “Trkulja v. Google LLC,” June 13, 2018, https://globalfreedomofexpression.columbia.edu/cases/trkulja-v-google-l….
- 10High Court of Australia, “Milorad Trkulja (Aka Michael Trkulja) v Google LLLC  HCA 25, Judgment Summary,” June 13, 2018, http://www.hcourt.gov.au/assets/publications/judgment-summaries/2018/hc….
|Do restrictions on the internet and digital content lack transparency, proportionality to the stated aims, or an independent appeals process?||2.002 4.004|
Australia is home to a limited but increasing number of restrictions on the internet. The legal and technical mechanisms by which ISPs filter illegal material have raised some concerns. In 2018, amendments to the criminal code in response to the Christchurch attack introduced an expansive new category of online content that social media companies must remove, while an amendment to the 1968 Copyright Act opened more avenues for blocking or removing copyright-infringing material.
The Online Safety Act came into force in January 2022.1 The act, which builds off the Enhancing Online Safety Act 2015, passed both houses of Australian parliament in June 2021 and received royal assent the following month.2 While the act aims to improve online safety by, for example, introducing protections against cyberbullying and child exploitation, it expands the federal government’s ability to block and request the removal of certain online content. Civil society groups, tech companies, and other commentators had raised concerns about the law before its passage, including its speedy takedown requirements and its potential disproportionate effect on marginalized groups, such as sex workers, sex educators, LGBT+ people, and artists (see B2).3
Content targeted under the Online Safety Act includes cyberbullying material directed at an Australian child, nonconsensually shared intimate images, and cyberabuse material targeting any Australian adult.4 Under the law, users can make formal complaints about online content; the eSafety Commissioner would then be empowered to conduct investigations into those complaints and issue removal notices. Providers, which include social media services, “relevant electronic services,” “designated internet services,” hosting services, and any end-user that posted the material, must remove content sanctioned by the commissioner within 24 hours of receiving a takedown notice. Failure to comply can result in a penalty of up to AU$555,000 ($396,000) for companies and AU$111,000 ($79,100) for individuals.5 The law also empowers the commissioner to issue app removal notices, requiring a provider to stop enabling users to download an app that facilitates the posting of certain material over their services.
The eSafety Commissioner is also able to order ISPs to block access to sites hosting “abhorrent violent material” for a period of up to three months, particularly when responding quickly to a crisis. After the three months have expired, the eSafety Commissioner can renew the block indefinitely. The act contains no requirement for the commissioner to give reasons for removal notices and provides no opportunity for users to respond to complaints.6
Protections against “abhorrent violent material” were previously amended to the criminal code in 2019 following the Christchurch attack. The amendments required ISPs, along with “content service providers,” and “hosting service providers,” to “expeditiously” remove any “abhorrent violent material,” defined as content depicting attempted murder, terrorism, torture, rape, or kidnapping, that is accessible in Australia.7 The eSafety Commissioner may alert companies to “abhorrent violent material” on their services; if the companies fail to “expeditiously” remove it, they could be fined AU$10.5 million (US$7.48 million) or 10 percent of their annual revenue. Individuals may be fined AU$2.1 million (US$1.5 million) or imprisoned for up to three years. The law also penalizes companies that fail to notify the Australian Federal Police (AFP) of material depicting “abhorrent violent conduct” occurring in Australia within a reasonable time after they become aware of it. These penalties are subject to appeal. Critics have expressed concern that the legislation could unreasonably place responsibility on executives and employees for content posted by users in an industry already grappling with the challenges of reviewing vast amounts of uploaded content.8
Australia’s copyright laws continue to evolve in response to the proliferation of copyright-infringing material online. In 2018, the Copyright Act was amended to broaden its provisions, for example, by allowing blocking injunctions to be extended from sites hosting the material to search-engine providers, which must take reasonable steps to block search results for copyright-infringing content.9 The amendment also allows existing blocking injunctions to be extended to “new domain names associated with the blocked online location” without a new court order.10
Section 313(3) of the 1997 Telecommunications Act allows government agencies to block illegal online services. Following a formal review of the law, the Department of Communications and the Arts published 2017 “good practice measures” on the use of Section 313(3) for agencies to follow, including obtaining approval from the agency head prior to blocking online services, disrupting online services only in instances of serious offenses or national security threats, informing the public on the law’s uses, and ensuring that the agency possesses appropriate technical expertise.11
Copyright holders may apply to the Federal Court to request that copyright-infringing websites and services located overseas be blocked by Australian ISPs under Section 115A of the Copyright Amendment (Online Infringement) Act of 2015.12 The court must take into consideration whether the overseas site has a primary purpose of facilitating copyright infringement, whether the response is proportionate, and whether a block is in the public interest. Additionally, there is no appointed party to represent the public interest in these cases.13
- 1Australia: Online Safety Bill Passed,” Library of Congress, August, 8, 2021, https://www.loc.gov/item/global-legal-monitor/2021-08-10/australia-onli…; “Australia: The scope of the Online Safety Act,” Data Guidance, February 2022, https://www.dataguidance.com/opinion/australia-scope-online-safety-act#….
- 2Online Safety Bill 2021 – Parliament of Australia (aph.gov.au)
- 3Asha Barbaschow, “Twitter and Twitch added to list of those concerned with Australia's Online Safety Bill,” ZDNet, March 4, 2021, https://www.zdnet.com/article/twitter-and-twitch-added-to-list-of-those….
- 4THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA. “Online Safety Bill 2021,” https://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r6680_ems….
- 5Iain Freeman and James Barrett, “What Australia’s new online safety laws mean for you,” Lavan, December 10, 2021, https://www.lavan.com.au/advice/cyber-and-data-protection/what_australi…; “Australia: The scope of the Online Safety Act,” Data Guidance, February 2022, https://www.dataguidance.com/opinion/australia-scope-online-safety-act#….
- 6Zahra Zsuzsanna Stardust, “A new online safety bill could allow censorship of anyone who engages with sexual content on the internet,” The Conversation, February 17, 2021, https://theconversation.com/a-new-online-safety-bill-could-allow-censor…; Jarryd Bartle, “The clumsily drafted online safety bill could see adult content censored in Australia,” the Guardian, March 5, 2021, https://www.theguardian.com/commentisfree/2021/mar/05/the-clumsily-draf…; “Explainer: The Online Safety Bill,” Digital Rights Watch, February 11, 2021, https://digitalrightswatch.org.au/2021/02/11/explainer-the-online-safet…; Australian Government Department of Infrastructure, Transport, Regional Development, and Communications, “Consultation on a Bill for a new Online Safety Act,” https://www.communications.gov.au/have-your-say/consultation-bill-new-o….
- 7Federal Register of Legislation, “Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019,” April 5, 2019, https://www.legislation.gov.au/Details/C2019A00038.
- 8Paul Karp, “Australia passes social media law penalising platforms for violent content,” The Guardian, April 3 2019, https://www.theguardian.com/media/2019/apr/04/australia-passes-social-m….
- 9Australian Copyright Council, “Site Blocking & Copyright Infringement,” October 2019, http://www.copyright.org.au/acc_prod/ACC/Information_Sheets/Copyright_I…; Department of Communications and the Arts, “Copyright Reform,” accessed October 2, 2020, https://www.communications.gov.au/what-we-do/copyright/copyright-reform.
- 10Australian Copyright Council, “Site Blocking & Copyright Infringement.”
- 11Department of Communications and the Arts, “Guidelines for the use of section 313(3) of the Telecommunications Act 1997 by government agencies for the lawful disruption of access to online services” July 17, 2017, https://www.communications.gov.au/documents/guidelines-use-section-3133….
- 12Parliament of Australia, “Copyright Amendment (Online Infringement) Bill 2015,” June 26, 2015, https://www.aph.gov.au/Parliamentary_Business/Bills_LEGislation/Bills_S….
- 13There are more listed considerations. See “Copyright Act 1968,” Federal Register of Legislation, Section 115A, accessed October 5, 2020, https://www.legislation.gov.au/Details/C2019C00042.
|Do online journalists, commentators, and ordinary users practice self-censorship?||3.003 4.004|
Australian defamation laws are widely regarded as among the most favorable to plaintiffs in the world, and fear of defamation suits has driven some self-censorship among both the media and ordinary users (see C2).
Legal defenses against defamation that are typically available in other democratic countries, such as the public interest defense, are difficult to claim in practice, effectively inhibiting the publication of public interest journalism when there is a risk of defamation accusations.1 According to a survey of journalists published in 2019 by the Australian Media Entertainment and Arts Alliance, 80 percent of respondents reported that defamation laws made their jobs more difficult, with a quarter saying that stories they had written were not published due to fears of provoking legal proceedings.2 Recent defamation case rulings targeting anonymity have further raised concern around potential self-censorship. In June 2022, after the coverage period, a court handed Twitter orders by consent to provide the personal information (including the name of the account, email address, and associated IP addresses) of a popular, anonymous pro-Labor Party account, “PRGuy17,” as part of a defamation lawsuit from a far-right figure.3
Separately, narrowly written orders to suppress coverage of ongoing legal proceedings are often interpreted by the media in an overly broad fashion, so as to avoid contempt of court charges.4 Some suppression orders are themselves excessively broad; both types can have a chilling effect on reporting. In 2018, a judge in Victoria state imposed a global suppression order on the trial of Cardinal George Pell, who was convicted of sex abuse later that year, to mitigate the risk of a mistrial. Journalists criticized the order, which was lifted in 2019, for impeding reporting on a topic of high public importance. Charges of contempt of court for noncompliance were brought against 19 journalists, 21 publications, and 6 corporations.5 Prosecutors dropped all charges against the individuals in February 2021, and in June,6 12 media outlets were fined a combined AU$1.1 million ($784,000).7
- 1Richard Ackland, “Legal Frictions,” The Walkley Magazine, July 24, 2018, https://medium.com/the-walkley-magazine/legal-frictions-96ee2b03b983.
- 2Media Entertainment & Arts Alliance, “The public’s right to know: The MEAA Report into the State of Press Freedom in Australia in 2019,” May 8, 2019, https://www.meaa.org/download/the-publics-right-to-know-the-meaa-report…
- 3Josh Taylor, “Twitter ordered to hand over PRGuy17’s personal information as part of defamation suit,” The Guardian, June 7, 2022, https://www.theguardian.com/technology/2022/jun/07/twitter-ordered-to-h…
- 4Nick Title, “Open Justice – Contempt of Court” (Paper presentation, Media Law Conference Proceedings, Faculty of Law, University of Melbourne, Melbourne, February 2013).
- 5Kirrily Schwarz, “The storm around suppression orders,” LSJ Online, April 30 2019, https://lsj.com.au/articles/the-storm-around-suppression-orders/; Melissa Davey, “George Pell contempt case: charges over media that allegedly breached suppression orders will go to trial,” The Guardian, May 25, 2020, https://www.theguardian.com/media/2020/may/26/cardinal-george-pell-cont….
- 6ABC News, “Guilty pleas bring abrupt end to George Pell media contempt trial,” February 1, 2021, https://www.abc.net.au/news/2021-02-01/george-pell-media-contempt-trial….
- 7“Cardinal George Pell: Australian media fined A$1.1m over trial reports,” BBC, June 4, 2021, https://www.bbc.com/news/world-australia-57353654.
|Are online sources of information controlled or manipulated by the government or other powerful actors to advance a particular political interest?||3.003 4.004|
The government does not control or manipulate online sources of information to advance any particular political interest.
The online portal of the publicly funded Australian Broadcasting Corporation (ABC) is a major source of news for Australians. Some members of the governing coalition have periodically called for the privatization of the ABC or cuts to its funding;1 commentators have characterized these proposals as a response to perceived left-leaning bias at the outlet. The persistent political pressure on the ABC has raised concerns about its editorial independence.2 For example, in 2018, Minister of Communications Paul Fletcher questioned whether ABC’s Four Corners program, which claimed that ministers had engaged in inappropriate conduct, “met the standards of fair and impartial journalism.”3 The media conglomerate News Corp Australia, which is controlled by Rupert Murdoch and is one of the leading players in the country’s concentrated news media market, is regarded by some observers as editorially biased in favor of the conservative Liberal Party–National Party former governing coalition.4
Recent elections have featured a proliferation of online disinformation spread by domestic political parties.5 In April 2022, one month before the federal election, the Australian Electoral Commission voiced concern over a trend coming from candidates of minor parties, including the One Nation and United Australia parties, who would post alleged advice to their supporters on Facebook that was infused with suggestions that election fraud was likely. For instance, one candidate advised voters to bring a pen to polls so that their votes would not be changed after the fact. Other prominent pieces of disinformation included claims that First Nations people had been silently wiped from the electoral roll.6 Facebook removed some of the misleading content the AEC requested be taken down.7
Major crises in recent years have led to significant disinformation campaigns online. Misinformation about the cause of bushfires, spread by both real users and bots, was rife on social media in relation to the bushfire emergency that affected Australia in late 2019 and early 2020.8 Manipulated online content also persisted throughout the COVID-19 pandemic: for example a small group of hyperpartisan anonymous accounts with fake profiles drove public discussion on Twitter about Victorian Premier Daniel Andrews’s handling of the state’s second COVID-19 outbreak.9
To address the increasing amount of online misinformation, the Digital Industry Group Inc., a nonprofit industry association that advocates for the interests of the tech industry in Australia, published in February 2021 the voluntary Australian Code of Practice on Misinformation and Disinformation. Developed with the assistance of ACMA, the code outlines practices to label, demote, or remove certain categories of false information; to prioritize credible content including through fact-checking programs; and to enhance transparency reporting. The code also includes practices for platforms to enhance transparency around political advertising. Twitter, Google, Facebook, Microsoft, Redbubble, and TikTok are among the platforms to have adopted the code, and have since started removing offending content, including on topics like the COVID-19 pandemic.10
- 1David Crowe, “Liberal Party council votes to sell off the ABC and move Australian embassy to Jerusalem,” The Sydney Morning Herald, June 16, 2018, https://www.smh.com.au/politics/federal/liberal-party-council-votes-to-….
- 2Caroline Fisher, “Digital News Report 2018 – Australia,” Reuters Institute for the Study of Journalism, accessed October 5, 2020, http://www.digitalnewsreport.org/survey/2018/australia-2018/.
- 3Amanda Meade, “Communications minister Paul Fletcher complains to ABC about Four Corners program,” The Guardian, November 30, 2020, https://www.theguardian.com/media/2020/dec/01/communications-minister-p….
- 4Johan Lidberg, “’New Low’ for Journalism? Why News Corp’s Partisan Campaign Coverage is Harmful to Democracy,” The Conversation, May 9, 2019, https://theconversation.com/new-low-for-journalism-why-news-corps-parti….
- 5Paul Karp and Nick Evershed, “Toyota distances itself from Liberal ads falsely claiming Labor wants to tax cars,” The Guardian, April 10, 2019, https://www.theguardian.com/australia-news/2019/apr/10/liberal-party-fa…; Michael Koziol, “’Bizarre tricks’: Labor hit by new ‘fake news’ media release stirring death tax fears,” The Sydney Morning Herald, May 13, 2019, https://www.smh.com.au/federal-election-2019/bizarre-tricks-labor-hit-b….
- 6Binoy Kampmark, “Australian Disinformation Wonderland: The Federal Election 2022,” International Policy Digest, May 21, 2022, https://intpolicydigest.org/australian-disinformation-wonderland-the-fe…
- 7Josh Butler and Sarah Martin, “AEC alarmed at ‘dangerous’ voter fraud claims spreading before Australian election,” The Guardian, April 16, 2022, https://www.theguardian.com/australia-news/2022/apr/17/aec-alarmed-at-d…
- 8Christopher Knaus, “Bots and trolls spread false arson claims in Australian fires ‘disinformation campaign’,” The Guardian, January 7, 2020, https://www.theguardian.com/australia-news/2020/jan/08/twitter-bots-tro…; Ariel Bogle and Kevin Nguyen, “Fires misinformation being spread through social media,” ABC News, January 7, 2020, https://www.abc.net.au/news/2020-01-08/fires-misinformation-being-sprea….
- 9Timothy Graham, Axel Bruns, Daniel Angus, Edward Hurcombe, Samuel Hames, “#IStandWithDan, #DictatorDan, #DanLiedPeopleDied: 397,000 tweets reveal the culprits behind a dangerously polarised debate,” The Conversation, December 22, 2020, https://theconversation.com/istandwithdan-dictatordan-danliedpeopledied…; Timothy Graham, “The story of #DanLiedPeopleDied: how a hashtag reveals Australia’s ‘information disorder’ problem,” The Conversation, August 14, 2020, https://theconversation.com/the-story-of-danliedpeopledied-how-a-hashta….
- 10Digi, “Disinformation Code,” accessed June 2021, https://digi.org.au/disinformation-code/.
|Are there economic or regulatory constraints that negatively affect users’ ability to publish content online?||3.003 3.003|
Users are generally free to publish content online without economic or regulatory constraints.
There are no limits on the amount of bandwidth that ISPs can supply, though ISPs are free to adopt internal market practices of traffic shaping, also known as data shaping. The principle of net neutrality is not enshrined in any law or regulation. Some Australian ISPs and mobile service providers practice traffic shaping under what are known as fair-use policies: if a customer uses peer-to-peer file-sharing software, internet connectivity for those activities will be slowed in order to release bandwidth for other applications.1
In February 2021, the government passed the News Media and Digital Platforms Bargaining Code, which establishes a mandatory arbitration regime for digital platforms, such as Facebook and Google, to negotiate with and ultimately pay news outlets for using their content.2 The term “digital platforms,” however, is not defined in the code, which was written to capture “platforms that deliver a wide variety of services” including social media, search engines, and other content aggregators. The minister of communications has the power to categorize services as digital platforms and, in making such a determination, must ensure there is a “significant bargaining power imbalance” between the news companies and the platforms.3 The country’s Department of the Treasury announced a review of the code in February 2022, with the hopes of assessing its progress and identifying possible improvements and publishing its findings in September.4
Critics have said that the News Media Bargaining Code ensures that major news corporations benefit from the “systematic data collection and exploitation models” that digital platforms promote,5 and the deals negotiated between Google and large corporate outlets in the wake of the law’s passing could negatively impact media diversity.6 The threshold of AU$150,000 ($107,000) in annual revenue that a corporation must generate in order to be registered by the ACMA to participate in the code and qualify as a valid “news business” has also been criticized for being potentially prohibitive to smaller and regional outlets.7 Broad nondisclosure provisions have also led some eligible news outlets to be shut out of negotiations with platforms without being offered a justification.8 Despite these criticisms, some have noted the added revenue could present an opportunity for news media outlets to invest in their newsrooms, potentially improving the quality and diversity of the journalism landscape in Australia.9
- 1Telstra, “Telstra Sustainability Report 2011,” October 2011, https://www.telstra.com.au/content/dam/tcom/about-us/community-environm….
- 2Australian Competition and Consumer Commission, “News Media bargaining code, final legislation,” February 25, 2021, https://www.accc.gov.au/focus-areas/digital-platforms/news-media-bargai….
- 3The Parliament of the Commonwealth of Australia, “TREASURY LAWS AMENDMENT (NEWS MEDIA AND DIGITAL PLATFORMS MANDATORY BARGAINING CODE) BILL 2020,” https://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r6652_ems….
- 4Campbell Kwan, “One year later: Treasury to review Australia's news media bargaining code,” ZDNet, February 27, 2022, https://www.zdnet.com/article/one-year-later-treasury-to-review-austral…
- 5Digital Rights Watch, “State of Digital Rights Report: A 2020 Retrospective,” February 5, 2021, p. 15, https://digitalrightswatch.org.au/2021/02/05/the-state-of-digital-right….
- 6Christopher Warren, “Diversity hit between the eyes as old media pockets about 90% of big tech cash,” Crikey, February 24, 2021, https://www.crikey.com.au/2021/02/24/media-diversity-hit-old-media-big-….
- 7The Parliament of the Commonwealth of Australia, “TREASURY LAWS AMENDMENT (NEWS MEDIA AND DIGITAL PLATFORMS MANDATORY BARGAINING CODE) BILL 2020,” https://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r6652_ems….
- 8Bill Grueskin, “Canada can learn from Australia’s news media deal with Big Tech,” The Peter Borough Examiner, April 16, 2022, https://www.thepeterboroughexaminer.com/ts/opinion/contributors/2022/04…
- 9Zoe Samios, “Hopes Google, Facebook deals will underpin a rise in journalism jobs,” Sydney Morning Herald, February 28, 2021, https://www.smh.com.au/business/companies/hopes-google-facebook-deals-w….
|Does the online information landscape lack diversity and reliability?||4.004 4.004|
Score Change: The score improved from 3 to 4 because Facebook did not block Australian news content, unlike during the previous coverage period, and the online landscape remained fairly diverse, with content available on an array of topics.
The online landscape is fairly diverse, with content available on an array of topics. Australians have access to a broad selection of online news sources that convey uncensored political and social viewpoints.
However, the online news landscape is influenced by ownership concentration in the print media industry. News Corp Australia accounts for more than half of newspaper circulation in Australia, while Nine (Fairfax Media) also holds a sizeable share.1 News Corp’s News.com.au is, according to some studies, the country’s most-viewed news website, and the digital versions of News Corp newspapers such as the Australian are also popular.2 Concerns about ownership concentration have come to prominence in the past; News Corp’s 2019 election coverage was criticized for being excessively one-sided, consistent with the outlet’s historically conservative political orientation.3 News Corp outlets have also been assailed for publishing content that is perceived to be supportive of white nationalism and prejudicial toward ethnic minorities.4
Shortly after the News Media and Bargaining Code passed in February 2021 (see B6), Facebook responded by blocking news content for Australian-based users entirely from its platform for a week. Nonnews content was also restricted, including content from the Australian Bureau of Meteorology, civil society organizations, and public health groups. In May 2022, whistleblower reporting exposed that Facebook intentionally created a broad takedown process that would impact nonnews content as a negotiating tactic.5 The social media platform reversed the block only after the Australian government agreed to make amendments to the new law, including giving platforms more time to negotiate deals with news outlets and a notice period if they were to be formally designated as one.6 Google ultimately responded by partnering with dozens of Australian outlets in a manner that is compliant with the code.7
The June 2021 passage of the Online Safety Act, which sparked civil society concern about its potential disproportionate effect on marginalized groups, may already be impacting the diversity of online content (see B2).8
Nevertheless, traditional and digital-only news outlets collectively ensure a substantial diversity of viewpoints are accessible to the public, and this is enhanced by other digital media such as blogs, Twitter feeds, Wikipedia pages, and Facebook groups.9 The publicly funded television station SBS features high-quality news programs in multiple languages, available offline and online, to reflect the diversity found in the country’s population.10
Misinformation has persisted online throughout the COVID-19 pandemic, undermining the reliability of available information. Various false claims and conspiracy theories have circulated on social media, including claims that the coronavirus is a hoax or has been exaggerated as a threat.11 Online coronavirus disinformation has had real-world effects in Australia. False claims that testing kits were faulty or contaminated reportedly discouraged some people in Melbourne from getting tested.12 Migrant groups in Australia have been found to be particularly influenced by vaccine misinformation and are less likely to get a vaccine as a result.13
- 1Anne Davies, “A Very Australian Coup: Murdoch, Turnbull and the Power of News Corp” The Guardian, September 19, 2018, https://www.theguardian.com/media/2018/sep/20/very-australian-coup-murd…
- 2Anne Davies, “A Very Australian Coup: Murdoch, Turnbull and the Power of News Corp.”
- 3Johan Lidberg, “’New Low’ for Journalism? Why News Corp’s Partisan Campaign Coverage is Harmful to Democracy.”
- 4Richard Cooke, “News Corp: Democracy’s greatest threat,” The Monthly, May 2019, https://www.themonthly.com.au/issue/2019/may/1556632800/richard-cooke/n….
- 5By Keach Hagey, Mike Cherney, and Jeff Horwitz, “Facebook Deliberately Caused Havoc in Australia to Influence New Law, Whistleblowers Say,” Washington Post, May 5, 2022, https://www.wsj.com/articles/facebook-deliberately-caused-havoc-in-aust…
- 6Will Jackson, “Australian news sites reappear on Facebook after government agrees to amend media bargaining laws,” ABC News, February 26, 2021, https://www.abc.net.au/news/2021-02-26/australian-news-sites-reappear-o…
- 7Kate Beddoe, “Answering your top questions about Google News Showcase,” Google, February 10, 2021, https://blog.google/around-the-globe/google-asia/australia/answering-yo….
- 8Asha Barbaschow, “Twitter and Twitch added to list of those concerned with Australia's Online Safety Bill,” ZDNet, March 4, 2021, https://www.zdnet.com/article/twitter-and-twitch-added-to-list-of-those….
- 9Terry Flew, “Not Yet the Internet Election: Online Media, Political Content and the 2007 Australian Federal Election,” Media International Australia Incorporating Culture and Policy 126 (2008): 5-13, http://eprints.qut.edu.au/39366/1/c39366.pdf.
- 10Amanda Meade, “Rod Sims says Facebook should be forced to negotiate with SBS under news media bargaining code,” The Guardian, May 22, 2022, https://www.theguardian.com/media/2022/may/23/rod-sims-says-facebook-sh…
- 11Matilda Boseley and Melissa Davey “Coronavirus Victoria: experts warn against blaming migrant communities for spreading misinformation,” The Guardian, June 27, 2020, https://www.theguardian.com/australia-news/2020/jun/28/coronavirus-vict…; Josh Taylor, “Covid-19 misinformation: pro-Trump and QAnon Twitter bots found to be worst culprits,” The Guardian, May 31, 2020, https://www.theguardian.com/media/2020/jun/01/covid-19-misinformation-p….
- 12“Nick Baker, “What is the ‘dangerous misinformation’ that is stopping Melburnians getting tested for COVID-19?” SBS News, July 4, 2020, https://www.sbs.com.au/news/what-is-the-dangerous-misinformation-that-i….
- 13SBS News, “Misinformation about COVID vaccines is putting Australia's diverse communities at risk, experts say,” March 4, 2021, https://www.abc.net.au/news/2021-03-04/covid-19-vaccine-misinformation-….
|Do conditions impede users’ ability to mobilize, form communities, and campaign, particularly on political and social issues?||6.006 6.006|
Australians use social media to petition the government and to mobilize for public protest without restrictions. For example, campaigns launched by GetUp!, an independent nonprofit advocacy group that campaigns on issues aligned with the political left, garner significant engagement online. GetUp! utilizes online petitions to raise awareness and gather support for causes such as cracking down on corporate tax avoidance and corruption.1
After Minister of Defense Peter Dutton sued refugee activist Shane Bazzi for defamation concerning posts on Twitter that labeled him a rape apologist (see C3), supporters set up a crowdfunding campaign in April 2021 to cover the cost of the legal proceedings.2 A November 2021 court ruling in favor of Dutton sparked concern about retribution among activists; however, Bazzi ultimately won his appeal in May 2022.3
While the ability to organize and assemble online remains unimpeded, the increasingly regular introduction of legislation targeting anonymity is seen by civil society as a potential threat to people’s willingness to mobilize using digital technology (see C4 and C5).4
- 1“Home Page,” GetUp! Australia, accessed October 5, 2020, https://www.getup.org.au.
- 2“The People v Peter Dutton: Legal Fund,” https://chuffed.org/project/the-people-v-peter-dutton-legal-fund.
- 3Paul Karp “Peter Dutton wins defamation case against refugee activist Shane Bazzi over Tweet,” The Guardian, November 21, 2021, https://www.theguardian.com/australia-news/2021/nov/24/peter-dutton-win…; Christopher Knaus, “Shane Bazzi wins appeal in defamation case over Peter Dutton tweet,” The Guardian, May 16, 2022, https://www.theguardian.com/australia-news/2022/may/17/shane-bazzi-wins…
- 4Law Council of Australia, “Bill will not prevent social media trolling,” 24 January 2022, https://www.lawcouncil.asn.au/media/media-releases/bill-will-not-preven…
|Do the constitution or other laws fail to protect rights such as freedom of expression, access to information, and press freedom, including on the internet, and are they enforced by a judiciary that lacks independence?||5.005 6.006|
Freedom of expression is not an explicitly protected constitutional or statutory right; Australia does not have a federal bill of rights.1 The High Court has held that there is an implied freedom of political communication in the constitution, but this extends only to the context of communications around the facilitation of representative democracy and communication with public officials.2 Australians’ rights to access online content and freely engage in online discussions are based less in law than on a shared understanding of the prerequisites for a fair and free society. The public benefits greatly from a culture of freedom of expression and freedom of information that is generally protected by an independent judiciary. The country is also a signatory to the International Covenant on Civil and Political Rights (ICCPR).
Whistleblower laws, laws pertaining to defamation, and suppression orders can inhibit journalists’ ability to report on important public issues (see B4).
- 1Paul Gregoire, “The Need for a Bill of Rights: An Interview with UNSW Professor George Williams,” Sydney Criminal Lawyers, April 11, 2017, https://www.sydneycriminallawyers.com.au/blog/the-need-for-a-bill-of-ri…
- 2Alana Maurushat and Renee Watt, “Australia’s Internet Filtering Proposal in the International Context,” Internet Law Bulletin 12, No. 2 (2009): 18-24, https://www.researchgate.net/publication/228183134_Clean_Feed_Australia….
|Are there laws that assign criminal penalties or civil liability for online activities, particularly those that are protected under international human rights standards?||2.002 4.004|
Online activities that are protected under international human rights standards are sometimes subject to criminal penalties in Australia, primarily through the country’s defamation laws. The Sharing of Abhorrent Violent Material Act, adopted in April 2019, introduced criminal code provisions that could also be applied to online speech (see B3).
Defamation law has been interpreted to favor plaintiffs and is governed by uniform state-level legislation as well as common law principles.1 However, there are several legal defenses against defamation claims, including those of truth, fair reporting on proceedings of public concern, and honest opinion. Three states, New South Wales, Victoria, and South Australia implemented reformed defamation laws in July 2021,2 which included the addition of a public interest defense, a single publication rule, and a serious harm threshold;3 they seek to standardize defamation laws across the nation while limiting the types of legitimate defamation claims and introducing new defenses.
A person may bring a defamation case to court based on information posted online by someone in another country, provided that the material is accessible in Australia and that the allegedly defamed person enjoys a reputation in Australia. This allows for the possibility of “libel tourism,” in which noncitizens file defamation cases in Australia against others based outside the country to take advantage of its favorable legal environment for plaintiffs. While the United States and the United Kingdom have enacted laws to restrict libel tourism, Australia is not currently considering any such legislation.
In some cases, the courts may grant a permanent injunction to prevent the publication of defamatory material, though this remedy is limited to cases involving a high risk that the defamation will continue.4
- 1Principles of online defamation stem from the High Court of Australia: High Court of Australia, “Dow Jones & Company Inc v. Joseph Gutnick (2002) HCA 56,” February 5, 2003, http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2002/56.html.
- 2Madeleine Gandhi, Joel Parsons, James Hoy, Sophie Dawson, “A National ‘Reset’ Begins: Defamation law reforms come into effect in NSW, Victoria, South Australia and QLD,” Bird & Bird, July 2021, https://www.twobirds.com/en/news/articles/2021/australia/a-national-res…
- 3“Social Media reined in by new laws on defamation,” The Australian, https://www.theaustralian.com.au/business/media/social-media-reined-in-…
- 4Supreme Court of New South Wales, “Carolan v Fairfax Media Publications Pty Ltd (No. 7),” April 3, 2017, http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2017/351.h….
|Are individuals penalized for online activities, particularly those that are protected under international human rights standards?||5.005 6.006|
Several high-profile lawsuits from recent years involved online defamation, with defendants including members of the professional press as well as ordinary social media users.1 Amendments to defamation laws, which came into effect across three states in Australia in July 2021, may curb the success of defamation suits in the future (see C2), particularly in relation to suits launched against social media users and journalists publishing in the public interest.
In a precedent-setting decision, a New South Wales Supreme Court judge ruled in June 2019 that media companies are liable for defamatory comments posted by third parties on their social media pages. In June 2020, the New South Wales Court of Appeal dismissed an appeal brought by media companies that had been found liable for defamation under the 2019 decision,2 and the High Court upheld the previous two rulings in September 2021.3 This finding was preliminary in nature, but it was still treated as significant by publishers. The relevant case has since been resolved, leaving the legal position of publishers unclear.4
High profile politicians, including senior cabinet members of Australia’s former governing coalition, have been known to sue journalists and activists for publishing unfavorable stories or posting critical commentary online.5 In April 2021, Minister of Defense Peter Dutton launched defamation proceedings against refugee activist Shane Bazzi, after Bazzi called Dutton a rape apologist on Twitter. In his submissions to the Court, Dutton accused Bazzi of “showing malice,” and of further demeaning him by claiming the defamation suit suppressed free speech.6 Bazzi’s legal representatives have said he validly expressed an “honest opinion,” which is a defense available in defamation suits (though the Federal Court confirmed in January 2021 that the honest opinion defense is subject to strict limits).7 Bazzi lost the case in November 2021 and was ordered to pay AU$35,000 ($25,000) in damages. He won an appeal overturning the ruling in May 2022, however, which concluded that Bazzi’s post did not contain a claim that Dutton excused rape.8
A high-profile defamation proceeding brought by decorated soldier Ben Roberts-Smith concluded in July 2022, after the coverage period, though a judgement was not expected for several months afterwards.9 Roberts-Smith sued the news outlets The Age, the Sydney Morning Herald, and The Canberra Times for publishing allegedly false stories in 2018 that claimed Roberts-Smith had committed war crimes while deployed in Afghanistan. His legal team has been funded by chairman of Seven West Media, Kerry Stokes, a major competitor of the news outlets subject to the suit. The case could have significant implications for reporting on matters of public interest, particularly those related to the military, as journalists and media outlets may balk at covering topics that could attract expensive defamation suits.10
In May 2021, New South Wales Deputy Premier John Barilaro launched defamation proceedings in Federal Court against YouTuber Jordan Shanks, who runs the popular YouTube channel Friendlyjordies, in which Shanks often discusses Australian political issues. Shanks has alleged, among other things, that Barilaro is corrupt and has mocked his Italian heritage. In his suit, Barilaro also included a claim against Google for failing to remove the videos.11 The matter escalated in June 2021, when New South Wales police arrested Kristo Langker, a producer of the Friendlyjordies YouTube channel, on charges of stalking Barilaro. Langker had allegedly approached Barilaro while filming on two occasions in attempt to discuss the defamation proceedings. Some commentators have expressed concern about apparent police overreach in arresting Langker.12 The case against Shanks was settled in November 2021, with Shanks agreeing to pay Barilaro AU$100,000 ($71,300) in legal costs.13 In June 2022, after the coverage period, Google was ordered to pay Barilaro AU$515,000 ($367,000) for the two allegedly defamatory videos. 14
- 1Centre for Media Transition, “Trends in Digital Defamation: Defendants, Plaintiffs, Platforms.”
- 2Jamie McKinnell, “Fairfax Media, Nationwide News and Sky News lose key appeal in Dylan Voller defamation case,” ABC News, May 31, 2020, https://www.abc.net.au/news/2020-06-01/media-giants-lose-key-appeal-in-….
- 3Elizabeth Byrne, ‘High Court finds media outlets are responsible for Facebook comments in Dylan Voller defamation case,” ABC, September 8, 2021, https://www.abc.net.au/news/2021-09-08/high-court-rules-on-media-respon…
- 4Josh Taylor, “Dylan Voller defamation case settlement leaves legal questions unresolved,” The Guardian, March 16, 2022, https://www.theguardian.com/media/2022/mar/16/dylan-voller-defamation-c…
- 5Katharine Murphy, “Christian Porter commences defamation action against the ABC over 'false' allegations,” The Guardian, March 14, 2021, https://www.theguardian.com/australia-news/2021/mar/15/christian-porter…; Lucy Cormack and Michaela Whitbourn, “Christian Porter discontinues defamation proceedings against ABC,” Sydney Morning Herald, May 31, 2021, https://www.smh.com.au/national/christian-porter-discontinues-defamatio…; Jane Norman, “Christian Porter defamation case has cost ABC about $780,000, says managing director David Anderson,” ABC News, June 6, 2021, https://www.abc.net.au/news/2021-06-07/david-anderson-abc-senate-estima….
- 6Paul Karp, “Peter Dutton accuses Shane Bazzi of malice over abusive tweets in defamation case,” The Guardian, June 24, 2021, https://www.theguardian.com/australia-news/2021/jun/25/peter-dutton-acc….
- 7Stead v Fairfax Media Publications Pty Ltd  FCA 15.
- 8Christopher Knaus, “Shane Bazzi wins appeal in defamation case over Peter Dutton tweet,” The Guardian, May 16, 2022, https://www.theguardian.com/australia-news/2022/may/17/shane-bazzi-wins…
- 9Ben Doherty, “Ben Roberts-Smith’s year-long defamation trial against three newspapers concludes,” The Guardian, July 27, 2022, https://www.theguardian.com/australia-news/2022/jul/27/ben-roberts-smit…
- 10Ben Doherty, “The case in courtroom 18D: Ben Roberts-Smith defamation case set for momentous 12-week trial,” The Guardian, June 6, 2021, https://www.theguardian.com/australia-news/2021/jun/06/the-case-in-cour….
- 11Michael McGowan, “YouTube comedian Friendlyjordies sued for defamation by NSW deputy premier John Barilaro,” The Guardian, May 28, 2021, https://www.theguardian.com/australia-news/2021/may/28/youtube-comedian….
- 12Christopher Knaus, “Friendlyjordies arrest by NSW police fixated persons unit questioned by former top prosecutor,” The Guardian, June 17, 2021, https://www.theguardian.com/australia-news/2021/jun/18/friendlyjordies-….
- 13Michael McGowan ‘’Friendlyjordies defamation case: Jordan Shanks apologises to John Barilaro to settle claim,” The Guardian, November 5, 2021, https://www.theguardian.com/australia-news/2021/nov/05/friendlyjordies-…
- 14Christopher Knaus, “Friendlyjordies arrest by NSW police fixated persons unit questioned by former top prosecutor,” The Guardian, June 17. 2021, https://www.theguardian.com/australia-news/2021/jun/18/friendlyjordies-…; “Google ordered to pay $515,000 in defamation suit in Australia,” CBS News, June 6, 2022, https://www.cbsnews.com/news/john-barilaro-friendlyjordies-google-shank…
|Does the government place restrictions on anonymous communication or encryption?||2.002 4.004|
Individuals do not need to register to use the internet, and there are no restrictions on anonymous communications. However, verified identification information is required to purchase any prepaid mobile service.1 Additional personal information must be submitted to a mobile service provider before a phone can be activated. All recorded information is stored while the service remains activated, and it may be accessed by law enforcement and emergency agencies with a valid warrant.2
In 2018, Parliament passed the Telecommunications and Other Legislation Amendment (Assistance and Access) Act, which allows intelligence and security agencies to send a mandatory notice or a voluntary request to ”communications providers” to change or break their own encryption technology in order to facilitate access to user data (see C6).3 The law prohibits assistance that would undermine encryption or security for users at large, but critics have noted that, in practice, enabling authorities’ access to one user’s data without creating exploitable vulnerabilities that could affect others is difficult (and in some cases impossible).4 The law also undermines the “journalist information warrant” (see C5), which is the limited protection that requires law enforcement to file a warrant when accessing journalist’s metadata because, under the 2018 law, authorities could feasibly install spyware on a journalist’s phone to access their metadata.
In August 2021, the Australian government passed the Surveillance Legislation Amendment (Identify and Disrupt) Bill, which poses a threat to encryption as it allows authorities to take over an individual’s social media accounts (see C5).5
In February 2022, the government introduced the Social Media (Anti-Trolling) Bill to Parliament.6 The bill sought to restrict anonymity online by requiring platforms to provide the name, email address, and phone number of users that were alleged to have defamed someone using an anonymous account. In the event of noncompliance, platforms would be held liable for the allegedly defamatory comments.7 Lawmakers and civil society organizations criticized the bill as “grossly inadequate” to meet its stated purpose, citing the lack of provisions preventing online abuse or trolling practices and the bill’s focus on empowering individuals to bring defamation lawsuits rather than pushing platforms to address online harms through design changes.8 The bill was not passed before the May 2022 federal election and the newly elected government reportedly has no intention of retabling it.9
- 1Privacy International, “Timeline of SIM Card Registration Laws,” June 11, 2019, https://privacyinternational.org/long-read/3018/timeline-sim-card-regis….
- 2Australian Communications and Media Authority (ACMA), “ID checks for prepaid mobiles,” accessed October 5, 2020, https://www.acma.gov.au/id-checks-prepaid-mobiles.
- 3“Australia data encryption laws explained,” BBC News, December 7, 2018, https://www.bbc.com/news/world-australia-46463029.
- 4Robert Merkel, “The government’s encryption laws finally passed despite concerns over security,” The Conversation, December 7, 2018, https://theconversation.com/the-governments-encryption-laws-finally-pas….
- 5Sarah Coble, “Australia Passes Identify and Disrupt Bill,” Infosecurity Magazine, August 25, 2021, https://www.infosecurity-magazine.com/news/australia-passes-identify-an….
- 6Attorney-General’s Department, “Social Media (Anti-Trolling) Bill,” https://www.ag.gov.au/legal-system/social-media-anti-trolling-bill; Campbell Kwan, “Australia's anti-trolling Bill enters Parliament retaining defamation focus,” ZDNet, February 9, 2022, https://www.zdnet.com/article/australias-anti-trolling-bill-enters-parl…
- 7Law Council of Australia, “Bill will not prevent social media trolling,” January 24, 2022, https://www.lawcouncil.asn.au/media/media-releases/bill-will-not-preven…
- 8Campbell Kwan, “Australia's anti-trolling Bill blasted by senators, online abuse victims and organisations alike,” ZDNet, March 9, 2022, https://www.zdnet.com/article/australias-anti-trolling-bill-blasted-by-…; Campbell Kwan, “Australia's anti-trolling Bill enters Parliament retaining defamation focus,” ZDNet, February 9, 2022, https://www.zdnet.com/article/australias-anti-trolling-bill-enters-parl…
- 9Josh Taylor, “Australian defamation law never needed Morrison’s ‘anti-trolling’ legislation,” The Guardian, June 11, 2022, https://www.theguardian.com/law/2022/jun/12/australian-defamation-law-n…
|Does state surveillance of internet activities infringe on users’ right to privacy?||2.002 6.006|
The government has expanded its surveillance and data-gathering capabilities in recent years. According to evidence given before the Parliamentary Joint Committee on Intelligence and Security (PJCIS) in August 2020, the AFP had issued eight requests to access encrypted user data and the New South Wales Police force had issued 13.1 In 2020–21, according to the Department of Home Affairs, 25 technical assistance requests were given by interception agencies to designated communications providers.2 The Australian Security Intelligence Organisation (ASIO), the country’s domestic intelligence service, has also employed powers given to it under the Assistance and Access Act. These requests are not subject to judicial oversight in cases where authorities had already seized a device.3
While the Privacy Act 1988 (Cth) grants some privacy protections, it does not provide individuals with a judicial remedy for privacy breaches, regardless of whether state or nonstate actors were responsible.4 However, individuals can file a complaint to the Office of the Australian Information Commissioner (OAIC ), the country’s privacy regulator, who can provide them with compensation in cases where their data was breached.5 The OAIC struggles with a lack of funding and resources, limiting its ability to adequately deal with complaints.6 In 2017, the Federal Court clarified that metadata do not qualify as personal information and are therefore not subject to statutory protections, further narrowing the scope of the Privacy Act.7
A review of the Privacy Act 1988 (Cth) was ongoing at the end of the coverage period, with the government releasing a discussion paper, proposing amendments to the definition of personal information and whether individuals should have a right of action to safeguard their right to privacy under the law in October 2021.8
Law enforcement agencies do not require a warrant to access metadata under the 2015 Telecommunications (Interception and Access) Amendment (Data Retention) Act (see C6), except when accessing the metadata of journalists, for which they must file a journalist information warrant.9
In June 2021, both houses of Parliament passed the Telecommunications Legislation Amendment (International Production Orders) Bill 2020,10 which establishes a new legal framework to access overseas communication data for law enforcement and national security purposes, facilitating access to encrypted communications provided by non-Australian companies.11
The Surveillance Legislation Amendment (Identify and Disrupt) Bill, passed in August 2021, grants the AFP and Australian Criminal Intelligence Commission (ACIC) the ability to request new types of warrants to investigate and disrupt “serious” crime (see C4). Warrants would be issued by an eligible judge or nominated Administrative Appeal Tribunal (AAT) member. The law contains three types of warrants. First, data disruption warrants would enable the AFP and ACIC to modify, add, copy, or delete data for the purpose of impeding the execution of serious offenses online. Second, network activity warrants would give the AFP and ACIC access to the devices and networks of the warrant’s subject. Third, the AFP and ACIC would have the power to take control of and lock the warrant’s subject out of an online account for the purpose of gathering evidence. The takeover warrants would also be permitted to be issued internally in an emergency, and subsequently authorized by a magistrate.
To take over an account, defined as a “an account that an electronic service has for an end user,” law enforcement agencies have the right to use an individual’s account credentials, including passwords, personal identification numbers (PINs), and biometric forms of identification; alter account credentials; and remove two-factor authentication requirements. The law also permits law enforcement to object to the public disclosure of the information gathered if “the information…could reasonably be expected to reveal details of account takeover technologies or methods,” raising concerns about authorities’ ability to access accounts on encrypted messaging services.12
The OAIC had raised concerns about the law, noting that it lacks important safeguards and grants agencies wide-ranging and coercive powers that may affect individuals not suspected of involvement with criminal activity.13
In April 2022, the Data Availability and Transparency Bill came into effect, which significantly broadened the government’s powers to share individuals’ personal data among its agencies and accredited parties to support three limited purposes: the delivery of government services, informing government policy and programs, and research and development.14 It was first introduced in December 2020 and passed both houses of Parliament in March 2022; while negotiating the bill, the government made some privacy-enhancing amendments, including restricting private access to public data.15 The law’s stated objective is to improve service delivery to citizens while enabling more evidence-based policy development. Though it does contain some privacy safeguards, including requiring that consent be obtained before sharing an individual’s personal information unless it is “impractical” or “unreasonable,” the OAIC has warned that the legislation could reduce Australians’ privacy protections and lead to the mishandling of personal information. Specifically, the OAIC has called for the data bill to compel agencies to anonymize data when possible and to include a robust data minimization approach, whereby data must not be shared when the purpose could be achieved without sharing personal information.16
The Australian Signals Directorate (ASD), Australia’s cyberintelligence agency, confirmed in March 2020 that it had spied on Australian citizens in the past year. While the ASD typically conducts surveillance of targets outside of Australia, the agency confirmed that it had, in an unspecified number of cases involving “rare circumstances,” obtained ministerial approval to conduct domestic surveillance.17
In 2014, Parliament enacted amendments to national security legislation that increased penalties for whistleblowers and potentially allows intelligence agents to monitor an entire network of people with a single warrant. In particular, a new section (35P) added to the 1979 ASIO Act included provisions that threaten journalists and whistleblowers with a 10-year prison term if they publish classified information related to special intelligence operations.18 Section 35P was subsequently amended to offer some protections to journalists.19 Other worrying amendments to the ASIO Act included changes to the scope of warrants—notably, the definition of “computer” was broadened to allow authorities to access data on multiple networked computers with a single warrant.
- 1Anthony Galloway, “Encryption powers not used by ASIO, police as tech companies volunteer help,” Sydney Morning Herald, August 7, 2020, https://www.smh.com.au/politics/federal/encryption-powers-not-used-by-a…; Parliament of Australia, “Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018,” August 7, 2020, https://www.aph.gov.au/Parliamentary_Business/Hansard/Hansard_Display?b….
- 2Department of Home Affairs, ‘Telecommunications (Interception and Access) Act 1979 Annual Report 2020-21,’ 2021, https://www.homeaffairs.gov.au/nat-security/files/telecommunications-in…
- 3Stilgherian, “The Encryption Debate in Australia: 2021 Update,” Carnegie Endowment for International Peace, March 31, 2021, https://carnegieendowment.org/2021/03/31/encryption-debate-in-australia…
- 4Rose Dlougatch, “Cyber Insecurity: Data Breaches, Remedies and the Enforcement of the Right to Privacy,” Australian Journal of Administrative Law 24, Pt. 4 (2018), http://sites.thomsonreuters.com.au/journals/2019/02/18/australian-journ….
- 5Aimee Chanthadavong, “OAIC orders Home Affairs to compensate asylum seekers over data breach,” ZDNet, January 27, 2021, https://www.zdnet.com/article/oaic-orders-home-affairs-to-compensate-as….
- 6Denham Sadler, ‘‘Like a one-armed juggler’: OAIC funding constraints in the spotlight again,” Innovation Australia, February 16, 2022, https://www.innovationaus.com/like-a-one-armed-juggler-oaic-funding-con…
- 7Office of the Australian Information Commissioner, “Privacy Commissioner v Telstra Corporation Limited Federal Court decision,“ February 20, 2017, https://www.oaic.gov.au/updates/news-and-media/privacy-commissioner-v-t… .
- 8Australian Government Attorney General’s Department, “Review of the Privacy Act 1988,” 2020, https://www.ag.gov.au/integrity/consultations/review-privacy-act-1988; Cam Wilson, “Online overhaul: here are all the ways the government wants to change how you use technology,” Crikey, May 5, 2021, https://www.crikey.com.au/2021/05/05/online-overhaul-here-are-all-the-w…; Anna Johnston, “Government sets direction for privacy law reform in Australia,” Iapp, November 4, 2021, https://iapp.org/news/a/government-sets-direction-for-privacy-law-refor…
- 9Press Freedom, “Decryption,” April 30, 2020, https://pressfreedom.org.au/decryption-e6cc82ec94b2.
- 10Justin Hendry, “Cross-border data access bill waved through parliament,” itnews, June 21, 2021, https://www.itnews.com.au/news/cross-border-data-access-bill-waved-thro….
- 11Asha Barbaschow, “International Production Orders Bill will give ASIO access to encrypted communications,” ZDNet, May 4, 2020, https://www.zdnet.com/article/international-production-orders-bill-will….
- 12Parliament of Australia, “Surveillance Legislation Amendment (Identify and Disrupt) Bill 2021,” 2021, https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_S….
- 13Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020 – OAIC Submission to the Parliamentary Joint Committee on Intelligence and Security, https://www.oaic.gov.au/engage-with-us/submissions/surveillance-legisla….
- 14Parliament of Australia “Online Safety Bill 2021,” accessed September 2021, https://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r6680_ems….
- 15Tom Burton, “End to multiple forms as ‘tell us once’ becomes possible,” Australian Financial Review, April 1, 2022, https://www.afr.com/politics/federal/end-to-multiple-forms-as-tell-us-o…; King and Wood Mallesons, “Data availability and transparency act passes parliament, paving the way for greater sharing and use of public sector data,” April 5, 2022, https://www.kwm.com/au/en/insights/latest-thinking/data-availability-an…
- 16Office of the Australian Information Commissioner, “Data Availability and Transparency Bill 2020: exposure draft consultation,” 2020, https://www.oaic.gov.au/engage-with-us/submissions/data-availability-an….
- 17Paul Karp, “Australian Signals Directorate has already spied on Australians, boss confirms,” The Guardian, March 4, 2020, https://www.theguardian.com/australia-news/2020/mar/04/australian-signa….
- 18Federal Register of Legislation, “National Security Legislation Amendment Act (No. 1) 2014,” accessed October 5, 2020, https://www.legislation.gov.au/Details/C2014A00108.
- 19Parliament of Australia, “Counter-Terrorism Legislation Amendment Bill (No. 1) 2016,” October 10, 2016, https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd16….
|Does monitoring and collection of user data by service providers and other technology companies infringe on users’ right to privacy?||3.003 6.006|
Technology companies have become more involved in state surveillance in recent years, thanks largely to the Assistance and Access law adopted in 2018 that gives Australia’s intelligence and security agencies the power to compel “communications providers” to undermine their own encryption technology to obtain user data (see C4).1
The Assistance and Access law allows these agencies to issue requests for encrypted data under a broad set of circumstances, including for the purpose of safeguarding the country’s national security, foreign relations, or economic well-being. Requests may also be issued for the purpose of enforcing criminal law. “Technical Assistance Requests” are voluntary requests for companies to use existing capabilities to assist agencies with access to user information. The law allows relevant agencies to compel tech companies to comply, including with requests to build capabilities into products to facilitate access.2
Rights groups have criticized the Assistance and Access law’s broad reach, relative lack of oversight, and harsh penalties. Opponents have also raised concerns about its potentially stifling effect on the country’s technology sector, as local companies could be forced to create products that are less secure than those of their foreign competitors.3 Companies that fail to cooperate could face fines of up to AU$10 million ($7.1 million), while individuals could face prison time. All requests for assistance are overseen by various Commonwealth bodies, depending on the requesting agency. Organizations subject to a request for assistance have the right to complain or appeal to the relevant oversight body for the requesting agency, and technical capability notices—which require the recipient to change or break their own encryption technology—must be issued by the attorney general and approved by the minister for communications.4
Law enforcement agencies with a lawful warrant may search and seize computers. They may also compel ISPs to intercept and store data from individuals suspected of committing a crime, as governed by the Telecommunications (Interception and Access) Act 1979 (TIAA). ISPs and similar entities are prohibited from, on their own imperative, monitoring and disclosing the content of communications without the customer’s consent.5 Unlawful collection of a communication and disclosure of its content can draw both civil and criminal sanctions.6 The TIAA and the Telecommunications Act explicitly authorize a range of disclosures, including to specified law enforcement and tax agencies. ISPs are currently able to monitor their networks without a warrant for “network protection duties,” such as curtailing malicious software and spam.7
Under the Online Safety Act 2021 (see B3), the e-Safety Commissioner has powers “to obtain information about the identity of an end-user and the contact details of an end-user from a social media service, relevant electronic service or designated internet service.” The commissioner can exercise these powers under broad and vaguely defined conditions, where the information sought is “relevant to the operation of the Act.”8
The Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 requires telecommunications companies to store two years of customer metadata.9 Telecommunications companies were required to update their technology to be compliant with the law in 2017, receiving a substantial grant from the government to assist with the process.10 That month, the government confirmed that metadata would not be available for use in civil cases.11
The Department of Home Affairs reported that in 2020–21, 223,413 authorizations were issued to access retained subscriber data. In the same reporting period, the Department disclosed that 998 warrants had been issued to law enforcement agencies for stored communications under the TIAA. Law enforcement agencies also made 39,289 authorizations for the disclosure of prospective telecommunications data.12
The Commonwealth Ombudsman reported in April 2021 that, since 2007, the Australian Capital Territory’s police force had systematically gained access to location-based services under the TIAA, in a manner that was not compliant with the law. For example, compliance issues included accessing locations of the wrong individuals, accessing locations after an authorization expired, and authorizations not being signed by the appropriate individual.13
The TIAA’s 2015 amendment added extra privacy protections for journalists, requiring security agencies to obtain a warrant before accessing journalists’ metadata. However, incidents of unauthorized access and loopholes in the Assistance and Access law have undermined faith in these safeguards (see C4).14
The data collection practices of technology firms have also come under scrutiny.15 The Federal Court of Australia ruled in April 2021 that Google breached Australian consumer laws by misleading Android users about how they can limit the company’s ability to obtain, retain, and use personal location data.16 In August 2022, after the coverage period, the Court fined Google AU$60 million ($42.8 million).17
The Data Availability and Transparency Bill 2020 also provides a mechanism by which the government can share citizens’ data with “accredited” third parties, such as academics and scientists. To become accredited, entities must satisfy certain security, privacy, and governance requirements.18
In April 2022, the government launched a discussion paper on a National Data Security Action Plan to develop clearer guidance and expectations around data security, following the recent passage of data sharing and cybersecurity laws (see C5).19 The Department of Home Affairs included the possible introduction of an explicit approach to data localization in the paper; global tech giants and industry associations spoke out against data localization requirements in September 2022, after the coverage period, claiming they would be ineffective for cybersecurity and have an overall negative impact on the availability of digital services.20
- 1“Australia date encryption laws explained,” BBC News, December 7, 2018, https://www.bbc.com/news/world-australia-46463029.
- 2Australian Department of Home Affairs, “Department of Home Affairs Annual Report 2018–19,” May 2019, https://www.homeaffairs.gov.au/reports-and-pubs/Annualreports/home-affa…; Chris Duckett, “AFP and NSW Police used Australia’s encryption laws seven times in 2018–19,” ZDNet, January 28, 2020, https://www.zdnet.com/article/afp-and-nsw-police-used-australias-encryp…; ASIO, police haven't used encryption powers as tech companies volunteer help (smh.com.au).
- 3“Digital Skills investment undermined by major parties’ digital rights legislation,” Digital Rights Watch, May 10, 2019, https://digitalrightswatch.org.au/2019/05/10/digital-skills-investment-….
- 4Australian Department of Home Affairs, “Assistance and Access: Common myths and misconceptions,” accessed October 5, 2020, https://www.homeaffairs.gov.au/about-us/our-portfolios/national-securit….
- 5Part 2-1, section 7, of the Telecommunications (Interception and Access) Act 1979 (TIAA) prohibits disclosure of an interception or communications, and Part 3-1, section 108, of the TIAA prohibits access to stored communications. See “Telecommunications (Interception and Access) Act 1979,” Commonwealth Consolidated Acts, accessed October 5, 2020, http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_act/taaa1….
- 6Criminal offenses are outlined in Part 2-9 of the TIAA, while civil remedies are outlined in Part 2-10. “Telecommunications (Interception and Access) Act 1979,” Commonwealth Consolidated Acts.
- 7Alana Maurushat, “Australia’s Accession to the Cybercrime Convention: Is the Convention Still Relevant in Combating Cybercrime in the Era of Obfuscation Crime Tools?” University of New South Wales Law Journal 16, No. 1 (2010): 431-473, http://www.unswlawjournal.unsw.edu.au/article/australias-accession-to-t….
- 8Parliament of Australia, “Online Safety Bill 2021,” accessed September 2021, https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_S…; Leighanna Mixter, Tina Butoiu, Franziska Putz, “Bills that claim to advance safety online will cause more online harm — it’s time to pay attention,” Wikimedia Policy, February 4, 2022, https://medium.com/wikimedia-policy/bills-that-claim-to-advance-safety-…
- 9Global Network Initiative, “Australia: Provision of Real-time Lawful Interception Assistance,” Country Legal Frameworks Resource, May 2017, https://clfr.globalnetworkinitiative.org/country/australia/
- 10Will Ockenden, “Metadata retention scheme deadline arrives, digital rights advocates say ‘get a VPN’,” ABC News, April 13, 2017, http://www.abc.net.au/news/2017-04-13/metadata-retention-scheme-deadlin…; Henry Belot and Matthew Doran, “Metadata capture begins but information not to be used for civil cases,” ABC News, April 13, 2017, http://www.abc.net.au/news/2017-04-13/data-retention-laws-start-but-inf….
- 11Corinne Reichert, “Brandis rules out data retention in civil litigation,” ZDNet, April 13, 2017, https://www.zdnet.com/article/brandis-rules-out-data-retention-in-civil….
- 12Australian Department of Home Affairs, “Telecommunications (Interception and Access) Act Annual Report 2020-2021,” 2021, https://www.homeaffairs.gov.au/nat-security/files/telecommunications-in….
- 13Asha Barbaschow, “Ombudsman finds unlawful metadata access by ACT cops on 1,704 occasions,” ZDNET, April 28, 2021, https://www.zdnet.com/article/ombudsman-finds-unlawful-metadata-access-….
- 14Paul Farrell, “The AFP and me: how one of my asylum stories sparked a 200-page police investigation,” The Guardian, February 11, 2016, https://www.theguardian.com/media/2016/feb/12/the-afp-and-me-how-one-of…; Luke Royes, “AFP officer accessed journalist’s call records in metadata breach,” ABC News, April 28, 2017, http://www.abc.net.au/news/2017-04-28/afp-officer-accessed-journalists-….
- 15“Commissioner launches Federal Court action against Facebook,” Office of the Australian Information Commissioner, March 9, 2020, https://www.oaic.gov.au/updates/news-and-media/commissioner-launches-fe…; Christopher Knaus, “Facebook claims it does not conduct business in Australia in Cambridge Analytica appeal,” The Guardian, January 18, 2021, https://www.theguardian.com/technology/2021/jan/19/facebook-asks-to-app…; Federal Court of Australia, Australian Information Commissioner v Facebook Inc (No 2)  FCA 1307, September 14, 2020, https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/20….
- 16Federal Court of Australia, Australian Competition and Consumer Commission v Google LLC (No 2)  FCA 367, April 16, 2021, https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/20….
- 17Catie McLeod, “Google fined $60m for misleading Australian Android users about location data,” News.com, August 13, 2022, https://www.news.com.au/technology/google-fined-60m-for-misleading-aust….
- 18The Parliament of the Commonwealth of Australia, “DATA AVAILABILITY AND TRANSPARENCY BILL 2020,” 2020, https://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r6649_ems….
- 19Joseph Brookes, “Govt seeks views on ‘whole-of-economy’ data security plan,” InnovationAus, April 6, 2022, https://www.innovationaus.com/govt-seeks-views-on-whole-of-economy-data…
- 20Justin Hendry, “Tech giants rally against data localisation in Australia,” InnovationAus, September 7, 2022, https://www.innovationaus.com/tech-giants-rally-against-data-localisati…
|Are individuals subject to extralegal intimidation or physical violence by state authorities or any other actor in relation to their online activities?||5.005 5.005|
Violence against online commentators is rare in Australia. Controversial figures are occasionally subject to intimidation and death threats. In 2019, the AFP obtained warrants and raided the homes of two journalists.1
The eSafety Commissioner recorded an increase in reports of cyberabuse during the coverage period. In 2020–21, the commissioner received requests for assistance from 1,599 adults, an increase of 52 percent from the year prior.2 The majority of victims were women. In the same period, the eSafety commissioner recorded receiving 2,687 reports of image-based abuse, which includes the nonconsensual sharing of intimate images, about the same number as the previous reporting period.3
- 1Clare Blumer, Lorna Knowles, and Elise Worthington, “ABC raid: AFP leave Ultimo building with files after hours-long raid over Afghan Files stories,” ABC News, June 5, 2019, https://www.abc.net.au/news/2019-06-05/abc-raided-by-australian-federal…; Paul Karp, “Federal police raid home of News Corp journalist Annika Smethurst,” The Guardian, June 3, 2019, https://www.theguardian.com/australia-news/2019/jun/04/federal-police-r…
- 2“Annual Report 2020–2021,” eSafety Commissioner https://www.esafety.gov.au/sites/default/files/2021-10/ACMA%20and%20eSa…
- 3“Annual Report 2020–2021,” eSafety Commissioner https://www.esafety.gov.au/sites/default/files/2021-10/ACMA%20and%20eSa…
|Are websites, governmental and private entities, service providers, or individual users subject to widespread hacking and other forms of cyberattack?||1.001 3.003|
Cyberattacks and hacking incidents remain a common concern, though they generally target larger institutions and have not been widely used to censor online speech or punish government critics.
Media platforms in Australia occasionally fall victim to cyberattacks. In December 2021, the Chinese government reportedly launched a major cyberattack against an Australian media company. Hackers allegedly accessed passwords and stole data from the company after exploiting vulnerabilities in company software.1 In June 2022, after the coverage period, Chinese-language platform Media Today experienced a cyberattack against its registration system with the presumed objective of obtaining user information and stealing accounts. Media Today reported that no user information was leaked and that the attack, which occurred on the anniversary of the Tiananmen Square massacre, came from internet protocol (IP) addresses located in the United States, Canada, and Hong Kong.2
Australian public institutions and businesses are sometimes targeted with cyberattacks. The Australian Cyber Security Center (ACSC) responded to 1,630 cyber security incidents in 2020–21, noting that such attacks have increasingly targeted critical infrastructure.3 A significant cyberattack in March 2021 targeted Parliament, causing employees to lose access to their emails for a limited period of time. The government reported that no information had been compromised.
- 1ABC, “China allegedly hacked Australian media outlet,” February 9, 2022, https://www.abc.net.au/radionational/programs/breakfast/china-allegedly…
- 2Ben Westcott, “Australian Chinese News Site Hit by Cyber Attack, Media Reports,” Bloomberg, June 8, 2022, https://www.bloomberg.com/news/articles/2022-06-08/australian-chinese-n…
- 3Australian Government: Australia Signals Directorate, “Annual Cyber Threat Report,” 2021 https://www.cyber.gov.au/acsc/view-all-content/reports-and-statistics/a…
See all data, scores & information on this country or territory.See More
Global Freedom Score95 100 free
Internet Freedom Score76 100 free
Freedom in the World StatusFree