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section heading icon     legislation

This page considers federal and state/territory content regulation legislation.

It covers -

subsection heading icon    introduction

The Australian Constitution does not feature any explicit provision relating to freedom of speech and - as noted in discussing human rights - does not enshrine a list of personal rights or freedoms that may be enforced in the courts. The Commonwealth Parliament may accordingly restrict or censor content through censorship or other legislation, as long as that law is within its constitutional powers.

Those powers primarily relate to -

  • broadcasting
  • telecommunications (including the internet)
  • imports/exports
  • interstate commerce.

The states have retained considerable powers regarding implementation of the national classification scheme, with Queensland for example using additional ratings.

subsection heading icon    the federal legal framework

As the preceding page suggested the Australian regime is a patchwork of federal and state/territory legislation. There is no single overarching 'Censorship Act'.

The Australian framework for online content regulation is provided by the Broadcasting Services Amendment (Online Services) Act 1999 (BSA Act), derived from the Commonwealth's broadcasting and telecommunications powers under the constitution

There is an exploration of the BSA in Peter Chen's 2000 thesis, complemented by Carolyn Penfold's intelligent 2002 paper Internet Content Regulation in Australia; Perceptions Thus Far, which teases out issues noted in
her 2001 paper on Nazis, Porn & Politics: Asserting Control Over Internet Content.

The Communications Legislation Amendment (Content Services) Act 2007 (Cth) specifies that as of 20 January 2008 publishers of online 'commercial content', 'live content' and content for mobile phones in Australia are all required to ensure that adult-oriented content is not accessed by minors.

It extends the previous content categorisation regime to live content (eg streaming video), so that -

  • Australian hosting of unrestricted sexually explicit content is prohibited (X18+, and Refused Classification content)
  • R18+ content (non-sexually-explicit, but restricted) must be restricted through a verification service that checks for ages 18 and up.
  • mature audience (MA15+) content must be restricted through a verification service that checks for ages 15 and up.
The 2007 regime is complaints-driven. As in the past, ACMA will use "take down", "service cessation" and "link deletion" notices to require publishers to remove content or access to content that is the subject of a complaint.

Users will prove their age by supplying their full names and either a credit card or digital signature approved for online use. Content publishers are required by law to keep records (for a period of two years) regarding who accessed R18+ content and with what credentials.

Although the legislation is oriented to commercial content providers it encompasses 'live content' services such as IRC services and chatrooms with an Australian connection.

Provisions in the Crimes Act 1914 deal with offensive or harassing use of telecommunications cover internet telephony, chat rooms and email. 

Classification of offensive material is based on the Classification (Publications, Films & Computer Games) Act 1995 (CPFCGA), extending traditional models for the control of glossy magazines, film and nasty comics. 

It appears unlikely that recent High Court decisions (notably the Nationwide News v Wills case and Political Advertising Case), which found the Constitution contains an implication of freedom of political expression, will undermine regulation of the sale and online/print distribution of adult content.

The Trade Practices Act 1974 (TPA) enables the ACCC to take action on misleading and deceptive conduct by corporations.

subsection heading icon   state/territory offensive content legislation

The Commonwealth is currently working towards amendment of the classification legislation, which is reflected in state/territory legislation from the middle of last decade -

the New South Wales Classification (Publications, Films & Computer Games) Enforcement Act 1995 (CEA)  

the Victorian Classification (Publications, Films & Computer Games) Enforcement Act (CEA) of the same year includes penalties for on-line "transmission" of material unsuitable for minors and has been criticised by some as unenforceable

the ACT Classification (Publications, Films & Computer Games) Act 1995 (CPFCG) reflects the NSW model

the 1995 Queensland Classification of Computer Games & Images Act (CCGI) uses a very broad definition of images (including text) within the meaning of 'computer game' and has been used in prosecutions over alleged online offences

the South Australian Classification (Publications, Films & Computer Games) Act 1995 (CPFCG) is similar to the Commonwealth classification legislation and does not appear to have a direct impact on Internet users. However a 'Net Censorship' Bill was introduced into Parliament on 8 November: making "offensive material available on the internet" would be illegal.

Western Australia has not followed the NSW model; its broad Censorship Act (CA) came into effect in November 1996. Critics have noted that under the WA legislation police do not require a warrant for searches of the premises of Internet Service Providers; some have argued this embraces inappropriate access to private email messages and other data contained on the ISP's system. 

the WA legislation strongly influenced the Northern Territory Classification of Publications, Films & Computer Games Act 1996 (CPFCG). 

Tasmania has the 1995 Classification (Publications, Films & Computer Games) Enforcement Act (CEA)

As with most overseas jurisdictions, the legislation includes strong sanctions against possession, production and distribution of child pornography, irrespective of whether that is online.

subsection heading icon     subversion, suicide and vilification

The federal Criminal Code Amendment (Suicide Related Material Offences) Act 2005 (SRMO) received royal assent on 6 July 2005, with provisions in Schedule 1 to come into effect on 6 January 2006. It identifies offences regarding

  • using a carriage service for suicide related material
  • Possessing, controlling, producing, supplying or obtaining suicide related material for use through a carriage service

The 2005 legislation amends the Criminal Code Act 1995 (CCA), omnibus legislation codifying "the general principles of criminal responsibility under laws of the Commonwealth". It is discussed in the supplementary note on cybersuicide.

subsection heading icon     local industry codes

The Internet Industry Association's Code of Practice is available on its site.  

The ACMA requirements for restricted access systems are available on its site.

In the Australian broadcast sector the key codes are

Commercial Television Australia (CTVA) Code of Practice, covering program classifications, accuracy, fairness and respect for privacy in news and current affairs, advertising time, placement of commercials and program promotions and complaints handling | here

Federation of Australian Radio Broadcasters Code of Practice | here

subsection heading icon     New Zealand legislation

The New Zealand offensive content regime centres on the Films, Videos, & Publications Classification Act 1993 (FVPCA).

It was updated by the Films, Videos, and Publications Classification Amendment Act 2005 (PDF) that featured significant changes to enforcement provisions regarding objectionable publications, images and other such material. As amended, a person who knowingly trades, distributes or makes objectionable materials now faces a maximum term of imprisonment of 10 years. Penalties for knowingly being in possession of objectionable materials increased to either a term of imprisonment not exceeding five years or a fine of up to NZ$50,000. Powers of search and seizure under the Act were also increased, with Inspectors of Publications now empowered to obtain search warrants where they have evidence that a suspect is knowingly in possession of objectionable material.

The Broadcasting Standards Authority endorses sectoral self-regulation through industry codes, in particular the -

Free-to-Air Television Code of Broadcasting Practice | here

Subscription Television Codes of Broadcasting Practice | here

Radio NZ and Radio Broadcasters Association Radio Code of Broadcasting Practice | here

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version of December 2007
© Bruce Arnold | caslon analytics