The ‘Serious Harm’ of Julie Inman Grant

On May 30, Senate estimates had the pleasure of hearing ESafety Commissioner Julie Inman Grant explain, after a fashion, how her ever-growing agency “protects” Australians. The highlight of the hearing came when Tasmanian Liberal Senator Claire Chandler, who has written of her frustration in The Spectator —  attempted to get at least one or two straight answers, especially about Ms Inman Grant’s attitude to men who demand to be regarded as women. This quest proved about as productive as nailing jelly to the wall.

Whatever else she might be — bureaucratic empire-builder, dispenser of six-figure grants to allied and supportive NGOs, advocate of curbs on free speech that would be illegal under the First Amendment in her native America — many readers will likely be impressed by a prodigious gift for slippery responses.

For the record, and because Hansard transcripts can be a bother to find on the Parliament’s website, Senator Chandler’s attempts to get a straight answer out of the witness are reproduced below. — roger franklin

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Senator CHANDLER: Ms Inman Grant, the eSafety website lists refusing to use a trans person’s preferred pronouns online or posting a video that deadnames them as an example of gendered hate and says that deliberately misgendering someone online is a form of gendered violence. How do you justify these statements in a country where a male rapist and child sex offender could be placed in a women’s prison and access women’s
facilities?

Ms Inman Grant: I fail to see the connection to that specific incident, Senator. That’s drawing a long bow, I would say. I will hand over to Mr [Toby] Dagg, who has responsibility for the education and prevention information on our site.

Mr Dagg: The resources you are referring to have been informed in significant part by our consultation with the LGBTIQ community, who have told us about the impact of misgendering and deadnaming on trans members of that community. The resources reflect that kind of advice.

Senator CHANDLER: Did you consult with any women’s rights groups to understand how it might impact upon them to be in a position where they can’t call out male sex offenders being placed in a women’s prison and access women’s facilities in an online space because the eSafety Commissioner has a position that is gendered violence?

Mr Dagg: Like the commissioner said, that is drawing an extremely long bow. The resources we have created don’t go to any judicial decisions made to place a particular person within a particular correctional facility; that is a matter for the judiciary. If you are interested in understanding the nature of the consultation and process that we went through to develop those resources, I am happy to take that on notice and return to you.

Senator CHANDLER: I might put some questions on notice around that because I would be interested to know. I am guessing, given that you have referenced it as seemingly a long bow to draw, that you are not aware of the case I have referred to. I have spoken about this in the Senate before: a man who was previously convicted of raping his six-year-old daughter committed a serious sexual assault on a woman in Australia and was referred to as a ‘woman’ by the media and the court, before being placed in a women’s prison.

Ms Inman Grant: What does this have to do with online safety, Senator?

Senator CHANDLER: Is it the eSafety Commissioner’s position that referring to a male rapist as a ‘man’ or as a ‘male’ in an online forum, posting about it on Facebook, is ‘misgendering’ and a form of violence?

Ms Inman Grant: I will take that on notice. I am not required to provide a personal opinion—nor would I—in a case like that; nor would I make an on-the-spot judgement about a particular live investigation without the proper investigations being done. I will not be drawn on that, Senator.

Senator CHANDLER: Ms Inman Grant, am I, or is any other Australian, at risk of the eSafety Commission taking action to have social media posts removed if we refer to a male sex offender as a ‘man’?

Ms Inman Grant: Specific provisions in the Online Safety Act go against political commentary and that is what I believe you are talking about. What we are looking at—and in the case that was raised earlier, which is now before the AAT—is assessment of the content. It only goes to serious harm and whether the post or posts were intended to menace, harass, and cause offence to the Australian individual by an ordinary reasonable person in all the circumstances; so a very high threshold. Of all the valid ACA complaints—adult cyber abuse complaints—that we receive, only six per cent result in formal notices. When those thresholds have been met, you know that there are serious attempts to not merely cause emotional and psychological harm to an Australian person. Again, you want to engage me in political debate. I am not going to censor any political commentary about trans or anti-trans material; that is not my role.

Senator CHANDLER: But your website clearly states that ‘misgendering someone online is gendered violence’. So you are saying that there is a risk that somebody who does so—

Ms Inman Grant: Most of the social media platforms have within their hate speech policies content around gendering and misgendering and deadnaming. If we are going to talk about the online context from the Trans Justice Project, nine out of 10 trans Australians have experienced serious hate or violence online. The proportion
of harm which that particular community experiences is off the charts vis-a-vis others. Back to the context that Mr Dagg noted: we have to consider that in looking at the vulnerability of specific communities.

Senator CHANDLER: Sure. I am a woman who has spoken out about these issues in the online space before, and I have copped my fair share of abuse, too.

Ms Inman Grant: I am sorry to hear that.

Senator CHANDLER: I am not sure I necessarily have the same protections in place.

Ms Inman Grant: Absolutely you do, Senator. If you reported serious cyber abuse to the platform and they didn’t take action, and you reported it to us, we would look at that with the same lens and would like to help you, if you were experiencing serious harm as a result of that abuse.

Senator CHANDLER: The test in legislation is that a reasonable person would have to conclude that it is likely that material was intended to have an effect of causing serious harm to a particular Australian adult; is that correct?

Mr Dagg: Yes, that is correct. That is the first limb of the test.

Senator CHANDLER: Do you think that a reasonable Australian would agree that women are entitled to refer to people who are male, and who seek access to female facilities, as ‘male’?

Mr Dagg: We are going back to the example you were citing before, Senator, the facts of which I am not familiar with. The test is one about establishing whether or not the material is intended to cause serious harm. I don’t think anything could be read into that test that would suggest that engaging in a debate about a person’s presentation would necessarily meet that bar. Again, it is difficult to work in a hypothetical sense at Senate estimates. Providing an answer in any definitive way requires us to review the material and take careful considered assessment of facts and apply the relevant law to the facts. It is difficult for me to be definitive either way, given your hypothetical.

Senator CHANDLER: It is difficult to be definitive either way. The reality is, as I was saying in previous questions, you can’t say with any certainty whether or not an individual who talks about these issues in an online space does so with zero risk of having that material removed or having legal action taken against them for doing so.

Mr Dagg: I would respond in two ways to that. First, the eSafety Commissioner does not have a role in relation to hate speech. It is not a specific component of our act and it is not referred to as an element we need to take into consideration in relation to adult cyber abuse. The second is, when the definition of what constitutes ‘seriously harmful’ is considered, you will see that it excludes—I am using the language of the act here—’mere
emotional responses such as fear and distress’. We are not talking about material that is intended to upset a person. We are not talking about material that is intended to simply offend a person. We are talking about material that is intended to cause serious harm and is menacing, harassing or offensive in all the circumstances. There is a lot for us to unpack in that test when we are going through the process to determine whether or not we judge material to be adult cyber abuse material, and so amenable to our removal powers.

Senator CHANDLER: I don’t think I am any clearer about the level of risk that individual Australians have to subject themselves to in engaging in these debates in online spaces.
Ms Inman Grant: Are you implying that we are taking down political commentary?

Senator CHANDLER: No. What I am getting across is that we are having a conversation trying to determine where the boundaries are and the eSafety Commission is saying, ‘It depends.’

Ms Inman Grant: No, the serious harm thresholds are laid out very clearly in the law and in the Adult Cyber Abuse Scheme, and we follow those. We take a reasoned approach. Six per cent of all valid complaints end up in a removal notice; a very small portion meet that threshold. So we take that threshold seriously, and we use discretion. Again, it is possible that some of your posts, or other posts, are being taken down because they violate a platform’s terms of service and someone has reported something they find to be offensive, but it isn’t something that was initiated by us.

Senator CHANDLER: But the advertised position on your website on misgendering and preferred pronouns is that women have to use—

Ms Inman Grant: We have 1,200 pages on our website, Senator. You can take a sentence and probably interpret it in any way you would like, but I don’t think that tells the whole story of how our investigations are run and how we utilise our investigations.

Senator CHANDLER: Perhaps some information on that on your website in relation to some of those statements—

Ms Inman Grant: There is tonnes of information that we are happy to point you to, including our regulatory guidance.

Senator CHANDLER: That’s all from me. Thank you.