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Australian internet censorship law
This
page explores legislation, codes of practice, enforcement
measures such as hotlines and major government/industry
initiatives regarding the net.
It covers -
the legal framework
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 national Constitution.
The Constitution does not feature any explicit provision
relating to freedom of speech and - as we have 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.
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.
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 communication (distinct
from communication or expression per se), will
undermine regulation of the sale and online/print distribution
of adult content.
history of censorship in Australia
As an aid to understanding
the Commonwealth legislation and its interaction with
state/territory regimes we have provided a more detailed
profile that features the history of censorship in Australia
and New Zealand since the 1790s.
It includes a timeline of key events and legislation,
along with pointers to major studies about print, broadcast
and film censorship prior to 1990.
That profile is here.
state/territory 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.
A more detailed discussion of the state/territory content
classification schemes is here.
industry
From 1 January 2000 the Australian Broadcasting Authority (ABA)
(archived here)
- merged with the Australian Communications Authority
in mid 2005 as the Australian Communications & Media
Authority (ACMA)
- has the power under the BSA Act to regulate internet
service providers and content hosts in censoring prohibited
(and potentially prohibited) content.
ISPs are required to take "all reasonable steps"
in responding to directions to prevent end-users accessing
'X' or 'Refused Classification' material. They are
also required to provide customers with filters from a
list of "approved" products. Questions about the promotion and use of those
filters are highlighted later in this guide.
The ACMA site provides a short overview
of online content regulation in Australia. That overview
has links to ABA reports to the Government and the 1999
Senate Select Committee report on the BSA legislation.
Arguably the Act is a fine example of internet 'gesture
politics', where the appearance of action is more important
than substantive responses to policy challenges - real
or imagined. The shrillness of praise for the Act - like
denunciations of the legislation and vilification of its
authors - not contributed to community understanding of
issues or assisted the growth of internet-based industries.
The legislation for example enshrines a filtering regime
(described later in
this guide). However, the government agency responsible
for that regime openly admits that whether the filters
work or not is irrelevant. We have yet to see the Eros
Foundation, lobby group for Australia's adult entertainment
industry (discussed in more detail here),
challenge the constitutionality of the legislation. Its
members instead have moved offshore and in practice the
content is still available.
The online NIMBY approach is reminiscent of smut retailing
in Canberra: it is readily available, as long as you are
prepared to travel to the three industrial suburbs ...
or point your browser to other than a dot-au domain.
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.
more detail
This site features a fuller description of the history
of censorship in Australia and New Zealand, major cases,
studies, advocacy groups and regulatory bodies -
- trends
and topographies - anxieties, antagonisms and responses
over the past two centuries
- Australia
to 1968 -
a history of Australian colonial, federal and state/territory
law and practice to 1968
- Australia
from 1968
- a history of Australian federal and state/territory
law and practice from 1968
- netwars
- censoring the net and the 'war on terror'
- New
Zealand - a complementary account of successive
New Zealand regimes, including the the Offensive
Publications Act 1892, the video panic of the
1980s, the Mazengarb Report and the Bill of Rights
Act 1990
- sources
& studies - a discussion of print and online
sources and studies (in print and online) regarding
censorship in Australia and New Zealand
- early
cases - comments on some historic censorship cases
in Australia and New Zealand
- recent
cases - selected recent censorship cases
- advocacy
- a map of libertarian, religious and industry lobby
groups
- attitudes
- what do Australians think about censorship?
- government
agencies
- the architecture of censorship: classification and
police agencies, customs and postal agencies, broadcast
regulators and courts
- legislation
- pointers to national and state/territory legislation
and industry codes
- ratings
- the operation of national and state/territory ratings
schemes
- statistics
- selected statistics about censorship in Australia
and New Zealand
- landmarks
- a timeline of key legislation, reports and events
for the two countries from 1819 to 2005
Those
pages are complemented by detailed profiles on defamation
and blasphemy and by
notes on issues such as cybersuicide,
bombmaking and sedition.
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(overseas law)
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