Australian Net Censorship Legislation: 1999/00
News (9th January, 2000):
The Commonwealth Government's Internet Censorship legislation, introduced in June 1999 as an amendment to the Broadcasting Services Act, came into force on 1st January 2000. The Australian Broadcasting Authority (ABA) has implemented a Complaints System which enables Australian citizens to lodge complaints about Internet Content.
The Commonwealth Government has also established a supposedly independent body called NetAlert which has a $5 million budget and a brief to provide advice to the community about managing children's access to the Internet.
Legislation to amend the Broadcasting Services Act (BSA) was introduced into the Senate on 21st April 1999, despite earlier assurances that an exposure draft would be released for public comment. The legislation was rushed through the Senate and passed on May 26. Debate on the Bill commenced in the House of Representatives on 21 June, and the Bill was passed by the House along party lines on 30th June.
In September 1999, the Internet Industry Association (IIA) released its Draft Code of Practice Version 5.0 which included sections designed to comply with the BSA. This code required ISPs to provide filtering software to users as a means of complying with the Act, even though the Act did not appear to endorse this as an "alternative access prevention method". The question of whether the use of filters was intended to be mandatory or voluntary was not clear and EFA submitted a response to the Code which criticised this and a number of other aspects.
In December 1999 the Australian Broadcasting Authority (ABA) approved IIA Code of Practice version 6.0 which was purely concerned with content regulation. This version included a list of "Approved Filters" which ISPs were required to "provide for use, at a charge determined by the ISP".
The list of Approved Filters was based on a CSIRO study commissioned by the government in November 1999. This report entitled Access Prevention Techniques for Internet Content Filtering was released publicly in early January 2000. The study made no attempt to evaluate the effectiveness of the filter products. The criteria for inclusion in IIA's list of "Approved Filters" seems to be based purely on an undertaking by the product supplier to incorporate URLs notified by the ABA in the filter blacklists.
In early December 1999 the Australian Broadcasting Authority released its Decision on adult verification systems. This was the ABA's final determination on procedures that sites hosting R-rated material in Australia must implement to verify that users are over 18. The R-rated classification deals with "adult themes" but does not permit sexually explicit content (X-rated) which is effectively now banned on the Internet in Australia. The determination was an improvement on the initial draft issued in late October 1999 but EFA believes the restrictions are still onerous, privacy-intrusive and will chill freedom of speech. EFA's response to the ABA Consultation Paper on Restricted Access systems outlines our concerns about such systems.
The Federal Government's activities are only part of the story. The Federal Government does not have the power to censor publications, film, video or computer games. This power is vested in the States, although most States have agreed to abide by content classifications determined by the Office of Film and Literature Classification (OFLC). The Commonwealth does exercise power over television and radio broadcasting under its telecommunications powers and it has legislated on Internet content regulation under these powers. However, the Commonwealth cannot prosecute content providers except for extreme offences such as child pornography, transmission of which is an offence under the Crimes Act. Under the Broadcasting Services Act 1999, the Commonwealth can enforce takedown orders on content hosts. However, only the States and Territories have the power to prosecute "offensive" content.
The Censorship Ministers of the States and Territories, meeting as the State and Commonwealth Attorneys-General (SCAG) Committee, have been considering draft model legislation for online content since 1996. In September 1999, this draft model legislation was released for public comment by the NSW, SA and ACT governments.
EFA's response to the draft State & Territory legislation was submitted to these governments in September 1999 and was also forwarded to other censorship Ministers from States that had not sought public comment. As at December 1999 the States and Territories had failed to reach agreement. In particular, Victoria, Western Australia and the Northern Territory already have legislation in place which differs from the model legislation. Concerns about the draft legislation are likely in the ACT, which has the most liberal laws in relation to publication and distribution of X-rated material in video form.
EFA continues to oppose the combined Commonwealth/State regime which is one of the most draconian Net censorship proposals the world has seen. We urge all who value freedom of speech to continue to lobby their Members of Parliament and Senators to support repeal of this legislation.
EFA's objective is to resist the imposition of censorship on the Internet in Australia by governments under any guise. EFA will continue to campaign against laws which restrict the ability of a service provider to provide an uncensored service, which assign liability to ISPs for material accessed through their service, or which deny users access to information or the freedom to communicate.