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related
Guide:
Censorship
and Free
Speech
related
Profiles:
Human
Rights
Australian
Constitution
& Cyberspace
Blasphemy
Sedition
|
legislation
This page considers federal and state/territory content
regulation legislation.
It covers -
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.
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.
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.
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.
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
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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