Danny Yee >> Internet Censorship/Free Speech >> Federal Net Censorship >> Senate Committee 1999

Stott Despoja minority report

Senate Select Committee on Information Technologies

Reference: Broadcasting Services Amendment (Online Services) Bill 1999


1.	Executive Summary

The Australian Democrats do not advocate unsuitable Internet material
being made available to minors.

We oppose the restriction of adult access to material that would
generally be acceptable to reasonable adults. We oppose the restriction
of adult access to Internet content where that same content is available
in other media.

This Bill is both unworkable and undesirable.

We believe the Bill is not consistent with previous recommendations of
the Senate Select Committee on Information Technologies and its
predecessors. While we were not in full agreement with those
recommendations, we believe that this Bill is significantly more
restrictive. (2.2)

We have found little evidence of the ``overwhelming community concern''
claimed by the Government as the motivation for this legislation. In
fact, evidence before the Committee indicates that the Australian public
is far more concerned about inappropriate censorship. Evidence also
indicates that extreme violence and racism are greater concerns than
explicit sexual material. (3.1-3.2)

Internet users do have a number of serious and legitimate concerns about
Internet regulation, including hate speech, vilification, defamation,
privacy, gambling, security, encryption and the legality of electronic
transactions. These should be addressed as a matter of urgency. (3.3)

The Government has not demonstrated any problems with the use of
existing legislative provisions for dealing with inappropriate content,
including Section 85ZE of the Crimes Act 1914 (Cth). (3.5)

We are concerned about the Government's unwillingness to address the
civil liberties issues raised by this Bill. Restrictions on freedom of
speech and imprecise enforcement provisions (in some cases privatising
law enforcement functions) are serious and should not be lightly
dismissed. (4.1)

The Bill proposes a scheme of content regulation which treats the
Internet very differently from analogous media. Content which is legal
in one medium could be illegal in another. (4.2)

The Australian Democrats do not believe that Internet content regulation
should result in a medium which is brought down to a lowest common
denominator. Regulation must take into account the diversity of the
Internet, and the legitimate and responsible use of the medium by
adults. (4.3)

If the Bill is to proceed, it should include some guarantees of the
privacy of both transactions and personal details of Internet users. The
possibility of logging transactions via proxies would result in a major
invasion of privacy. (4.5)

The Australian Democrats are concerned about the unfavourable comparison
between Australia and other countries which have attempted to block
Internet content. These countries include Burma, Iran, Saudi Arabia,
China, Malaysia and Singapore. Malaysia has recently abandoned attempts
to censor Internet content, primarily for performance reasons. Singapore
blocks a relatively small number of sites as a ``statement of values''.

The evidence overwhelmingly suggests that the proposal to block overseas
Internet content is technically flawed (there are major performance
implications and blocking is able to be circumvented) and would have
major economic consequences. (5.1-5.3)

A number of techniques exist to circumvent blocking technologies. These
include the use of proxies outside Australia, encryption, protocol
tunnelling, private networks and the use of non-terrestrial
communication channels. (5.4)

Proxies are usually restricted to specific protocols (such as the World
Wide Web). Content can be easily shifted to alternative protocols to
bypass proxy based filters. (5.5)

The Australian Democrats are concerned about inappropriate and
inadvertent blocking. This concern applies generally to filters, but is
of particular concern when the blocking is compulsory. (5.8)

Blocking lists used in filters should be fully disclosed. Secret lists
of which materials are to be blocked could lead to abuse. Any censorship
in a liberal democracy must be open and accountable. (5.9)

The creation of an unenforceable law such as the provisions blocking
overseas content is highly undesirable. Failure of this Bill would be
likely to lead to a more punitive regime for content control. (6.3-6.4)

The Australian Democrats have numerous concerns with the drafting of the
Bill as it has been presented to the committee. These include undefined
terms, broad discretions, harsh penalties and the possible abuse of
provisions. (6.7)

The Australian Democrats believe that self-regulation and co-regulation
need to be more carefully investigated in the context of content
regulation. (6.9)

The Bill is likely to have a significant impact on the development of
the Internet economy in Australia. This will result from direct costs
incurred by Internet service providers and the indirect costs of content
creators and hosts moving off-shore to avoid the regulations. (7.1-7.3)

The financial impact on small and regional Internet service providers is
likely to lead to a shake out in the Internet industry. This could have
a dramatic effect on the availability of Internet services in many parts
of Australia. (7.5)

Client-side filtering technologies and differentiated Internet services
offer a workable alternative to blocking materials at the source or in
transit. (8.4)

Client-side technologies need to be regulated to ensure that appropriate
content is not inadvertently or inappropriately blocked. Users need to
be fully aware of the assumptions and models that are used to block
content. (8.4.3)

The Australian Democrats believe that adult responsibility should be a
central component of any attempt to control the way in which young
people use the Internet. (8.6)

We support the creation of appropriate content for young people. It has
been suggested that the lack of appropriate content is one of the
factors influencing the use of the Internet by young people. (8.7)

The Australian Democrats would support a system of Internet content
regulation which was based on empowerment of responsible adults rather
than a ``command and control'' censorship mechanism. This would need to
include education and the availability of client-side filtering
technologies. (8.8)

The Australian Democrats regret the sensationalist way in which the
Government has labelled critics of this proposed legislation. (9.4)

The Australian Democrats believe that this Bill has been prepared with
undue haste and that consideration should be given to alternative
proposals based on education and empowerment of users, and on an
understanding of the responsibility of those supervising Internet use by
young people. (10.4)

2.	Background

This Committee is the successor to the Senate Select Committee on
Community Standards Relevant to the Supply of Services Utilising
Electronic Technologies. That committee had first examined the
regulation of video and computer game content in 1993. In April 1995
hearings began into the regulation of online information and
entertainment services. The committee reported on the regulation of
computer in-line services in June 1997. Subsequently, the committee was
renamed and continued to examine regulation of these industries through
an inquiry into self-regulation in the information and communications
industries. A report on this reference has not yet been presented to the
Senate, although a report was presented on the need for the Committee in
the Thirty-Ninth Parliament.

The previous incarnation of this Committee made a number of
recommendations concerning the regulation of online content. While the
Australian Democrats disagreed with many of those recommendations, we
nonetheless wish to draw attention to recommendations which have been
largely ignored by the Government in the drafting of this legislation.
For reasons which have not been made clear, this legislation goes
significantly beyond those recommendations in both reach and coverage.
In particular those recommendations did not include take-down provisions
and did not require the blocking of content for either locally or
internationally hosted materials.

While there are obvious and significant differences between the
Australian legal environment and that of the United States, it is
instructive to briefly examine the international context of content
regulation. Clearly,  the debate on this issue in the United States is
centred on the centrality of free speech as protected by the First
Amendment to the United States Constitution. Despite this, there have
been attempts to regulate Internet content in that country. The first
attempt was struck down by the US Federal Court in the case of ACLU v
Reno (this result was later affirmed by the US Supreme Court). In that
case, the court held that free speech on the Internet was deserving of
special protection as the Internet was ``... the most participatory form
of mass speech yet developed.'' In that same judgement, the court held
that ``The plaintiffs in these actions correctly describe the
`democratizing' effects of Internet communication: individual citizens
of limited means can speak to a worldwide audience on issues of concern
to them.'' As one submission to the Committee has stated, this is
precisely why the medium is so appealing to many people (Mr Mark Newton,
Submission 75).

In late 1998, the Government signed a Memorandum of Understanding with
the United States Government on cooperation in electronic commerce. When
announcing this proposal, the Prime Minister indicated that this was an
agreement on ``key policy principles of private sector leadership,
minimal government intervention and self-regulation wherever possible.''
The Australian Democrats wish to note the following clauses included in
the Memorandum:

``4.A The internet is a medium for promoting, in a positive way,
diffusion of knowledge, cultural diversity and social interaction, as
well as a means of facilitating commerce. Governments should not prevent
their citizens from accessing information simply because it is published
online in another country.

``4.B Empowerment of users, including parents in relation to material
which may be unsuitable for children, should be achieved through
information and education, as well as through the availability of
filtering/blocking systems or other tools. Industry self-regulation will
assist in the promotion of content labelling

``4.C Industry will need to deal appropriately with complaints about
prohibited content. We encourage international cooperation between law
enforcement authorities to prevent, investigate and prosecute illegal
activities on the internet and the illegal use of e-commerce by criminal
and terrorist organisations.''

Once again, while the Australian Democrats are concerned about the
content of some of these clauses, we wish to draw attention to the
significant differences between the intentions expressed by the
Government in these clauses and the content regulation proposal embodied
in the Bill before the Committee.

3.	Demands for reform?

Genuine and legitimate concerns?

The primary justification given by the Minister when introducing the
Internet censorship proposals was community concern.

It is difficult to identify where these concerns might have come from,
as they have not been used by the Government to substantiate their
arguments. Indeed, there is significant evidence that the Australian
community is broadly opposed to the imposition of Internet censorship.

One of the possible sources of these apparently unsubstantiated
community concerns might be the continuing sensationalised reports in
the media regarding Internet content. These reports have painted a
picture of the Internet as a medium where the majority of content is
inappropriate and can be easily accessed. Indeed, one member of the
committee made the following statement during the hearings: ``We are
talking about the fact that you have only got to press P on the Internet
and all this stuff appears free of charge in front of you and young
children can access it.'' This is a slight exaggeration, but it seems to
have been the sort of `fact' underlying the justifications for this
legislation. This statement is perhaps an indication of the serious lack
of understanding of both the problem and possible solutions.

Community Opinion

Community opinion has been surveyed on a number of occasions, and the
overwhelming majority of those surveyed have expressed serious concerns
and opposition to censorship. There was no evidence before the inquiry
that indicated the broader community were in favour of Internet content

Sunday survey

A poll by the Sunday program on Sunday 25 April 1999, posed the
question: ``Which of the following are you most concerned about? Sex and
nudity on television? Violence on television? Senators telling us what
we can watch?'' The results of the survey had 4% of respondents
concerned about sex, 12% concerned about violence, and 84% concerned
about Senators telling us what we can watch. This would appear to
indicate a general resentment among Australians about the practise of

Roy Morgan/Eros Foundation

A survey was commissioned by the Eros Foundation from Roy Morgan in
early 1999. The results clearly demonstrate a number of significant
conclusions. Specific findings include a clear majority of adults being
in favour of the film Lolita being available for viewing by adults. The
survey also indicated overwhelming opposition to political interference
in the classification process. There was also overwhelming support for
the continued availability of non-violent erotic videos from properly
licensed book stores. Another conclusion of the survey was that the
overwhelming majority of those surveyed would ban extremely violent
films and extremely racist films before they would ban sexually explicit


www.consult undertook a survey in January and February 1999 of
Australian Internet users. Around 25,000 surveys were submitted. One of
the survey questions asked ``Do you think the government should censor
the Internet?"

Only 9.9% of respondents chose the option: "I think the government
should censor the Internet."

62.5% of respondents chose: "I think that parents should be responsible
for their kids' Internet use"

22.5% chose "I don't think anyone should censor the Internet"

4.1% chose "I don't care"

0.6% of survey respondents "Did not respond" to this particular

The Age (25 April 1997)

A poll by The Age in April 1997 showed that ``... 83% of Australians
thought that non-violent sexually explicit X-rated videos should be
legally available.'' This survey was undertaken in the context of major
efforts to ban these videos. This clearly indicates public opposition to

ABC phone-in

A phone-in session on ABC Radio National in October 1998 featured a
discussion with an ABA official about Internet content regulation,
followed by a talkback. Those who phoned-in were unanimously opposed to
Government censorship of the Internet. A follow-up program took more
calls and was inundated with further callers objecting to Federal
Government attempts to control content. It is believed that there were
no callers in favour of content regulation.

Submissions to the Committee

Submissions to the Committee and communications received from the public
indicate an overwhelming opposition to this content regulation proposal.
Many concerns were expressed, ranging from freedom of speech issues to
technical issues to legal issues.

Users' genuine concerns

Users of the Internet have many concerns about aspects of the Internet,
but, once again, these other concerns have been bypassed in an attempt
to regulate sexually explicit content.

Internet users are concerned about some types of content, but these
concerns are not adequately addressed by this legislation. Users' main
content concerns include hate speech, vilification and defamation. In
relation to the censorship of content more generally, the public has
indicated repeatedly that they are more concerned with violence and
racism than with sexually explicit materials. The Roy Morgan poll
commissioned by the Eros Foundation very clearly demonstrates this

Privacy of both transactions and communications remains a significant
concern to Internet users, but this is yet to be addressed by
Government. In particular, there has been no move to regulate the
collection of information from children. In addition to that specific
concern, there have been no moves to protect the privacy of information
generally gathered from Internet users, or information gathered about
Internet use. Many users remain concerned that monitoring of their
Internet use might be used against them in some way.

It is should be noted that while the Government has moved to regulate
inappropriate content on the Internet, there has still not been
investigation or attempted regulation of gambling via the Internet.
Despite expressed community concerns on this issue, the Government
continues to regard online gambling as a legitimate area of growth, and
as an appropriate part of the online content environment (Media Release,
Minister for Communications, Information Technology and the Arts, 23
March 1999).

The failure to properly address issues of security and encryption has
been one of the most serious impediments to the growth of the online
economy worldwide. Users remain wary of using electronic commerce
services in the absence of highly secure systems.

Internet users are wary of electronic transactions which are not
protected by an appropriate legal regime. The Government's recent
proposals only go part of the way towards the provision of this legal


Columbine High School tragedy

It is distressing that the tragedy at Columbine High School in Colorado
coincided with this inquiry. Statements were made by witnesses, leaders
and members of the Committee which apparently indicated that the
Internet was in some way responsible for the incident. While it would
appear that the perpetrators were Internet users, the implication that
this incident was caused or encouraged by the Internet has not been
substantiated. There is a growing body of evidence that the incident has
led to punitive and discriminatory treatment of young people within the
school system who are considered different. In particular, young
Internet users in the United States have been subject to extensive
discrimination and victimisation following this incident. We will
continue to monitor this situation with some interest.

General rhetoric

The Government has portrayed the Internet as an environment in which
pornography and other content inappropriate for children is the norm
rather than the exception. This is rather unfortunate and has
perpetuated the misconception that the Internet is a dangerous
environment. This portrayal has become a convenient and
self-perpetuating myth which has obscured the immense positive effects
of this new medium.

Existing Legislation

No evidence was provided to the committee indicating the failure of
existing laws dealing with offensive Internet content. Research
indicates that numerous prosecutions have been brought successfully
using existing provisions such as Section 85ZE of the Crimes Act 1914
(Commonwealth). Numerous State and Territory laws have also been invoked
successfully to deal with problematic content.

It is the case that most existing laws do not attempt to block access to
materials which are merely explicit and are not considered
``offensive.'' As discussed below, it is the belief of the Australian
Democrats that appropriate content regulation would combine existing
legislation with the empowerment of parents and other responsible

Censorship and Civil Liberties

Free Speech

While there is no constitutionally guaranteed right of free speech in
Australia, there is a widespread belief among Australians that there is
some guarantee of free speech. In our system of government, the right to
free speech is defined as by what remains after the boundaries have been
defined by courts and the parliament.

Australia is a signatory to a number of international treaties,
covenants and conventions which promote freedom of speech in conjunction
with other freedoms. Indeed there is the possibility that this
legislation could be challenged with a case brought under the Optional
Protocol to the International Covenant on Civil and Political Rights.

It is certainly the case that free speech is limited in all countries,
including the United States. In that country, obscene materials are not
protected by the First Amendment. However, the restrictions proposed in
this Bill can not be justified in a liberal democracy.

Analogous Media

The Government has portrayed the Bill before the Committee as dealing
with content in a similar way to analogous media. It is difficult to
understand what is meant by analogous media since there are few
similarities between the Internet and existing media. The Australian
Democrats do not believe that this Bill deals with Internet content in a
manner analogous to the regulation of either books or film and video.

One submission indicated that the effect of the Bill would be to create
a new class of content which was legal in one medium and illegal in
another. The Australian Democrats agree that this is not an appropriate
outcome in any media regulation.

Lowest Common Denominator

Regulating the Internet to make all content suitable for young children
is likely to have a dramatic chilling effect on the medium as a whole.
The effects of this legislative proposal are likely to be wider than

What is offensive and obscene?

The question of who makes decisions regarding the appropriateness of
content has always been a vexed one. Unfortunately, the question of
community standards has been bypassed in consideration of this Bill,
primarily due to the adoption of standards carried across from other
media. The proposed regime applies those standards in a significantly
more restrictive way which discriminates heavily against content made
available via the Internet.


Privacy has already been mentioned as a concern of Internet users, but
there are specific concerns in relation to the technologies which have
been indirectly endorsed as appropriate blocking tools. In general this
is due to the possibility of those tools being used to log and monitor
an individual's Internet usage.

International comparisons

Witnesses and submissions referred to the unfavourable comparison that
might be drawn between Australia and other countries which have sought
to censor and block Internet content.

While the policies of Burma, Iran, Saudi Arabia and China were mentioned
briefly, there was a particular focus on the situation in Singapore and

According to evidence before the Committee, the situation in Singapore
is that a small number of sites are blocked as a ``statement of values''
of the Singaporean government. There does not appear to be an attempt to
block all offensive material from entering the country. Internet service
providers are encouraged to take their own initiative against offensive
content. They are not required to monitor the Internet, or their users'
Internet activities.

Evidence of the Malaysian situation indicates that the Malaysian Prime
Minister announced during March 1999 that there would be no censorship
of the Internet. Contrary to assertions made by Committee members, the
removal of censorship provisions does not just apply within the
Multimedia Super Corridor. It should be noted that censorship was used
to prevent the distribution of information about political opposition to
the Malaysian government. That possibility alone should indicate against
the imposition of a widespread censorship regime in Australia.

Technical Feasibility

The most significant problem with the Bill is undoubtedly the failure to
address the technical arguments which have been made against Internet
censorship. While the Australian Democrats are not in favour of
technological determinism as a guiding force for regulation, it must be
acknowledged that technical feasibility necessarily plays a central role
in attempts to regulate any media.

Evidence was presented by Dr Philip McCrae and the CSIRO about the
feasibility of blocking schemes as proposed for dealing with
international Internet content. In the view of the Australian Democrats,
this evidence is credible and should not be dismissed.

The primary concerns raised in relation to proxy or router-based
blocking technologies were performance issues. It is believed that minor
additional delays in Internet communication could result in dramatic
performance constraints when applied cumulatively.

A number of techniques exist to circumvent blocking. Proxies which are
based outside Australia can be used to rewrite queries and disguise
responses so that they do not appear to originate from a blocked site.
Encryption, protocol tunnelling, private networks and non-terrestrial
communications also enable users to bypass the imposition of blocking

In addition, proxies are usually restricted to specific protocols on the
Internet, such as the World Wide Web. Content can easily be provided via
new services which are specifically designed to bypass these types of
restrictions. Indeed, content is easily be shifted to FTP sites, mail
servers, newsgroups and a range of other, less well known, services.
This has been the case in relation to other questionable activities such
as software piracy, which has moved underground.

A number of witnesses and submissions to the committee quoted John
Gilmor's words on Internet censorship: ``The Internet interprets
censorship as damage and routes around it.'' Another author referred to
this same issue with the reminder that, ``the Internet was built to
resist the Russians, but it turned out to resist regulation.'' It is
this resistance to regulation which should convince us of the need to
find alternatives to top down regulation, including the empowerment of

The Bill draws a largely illusory distinction between local and
internationally available materials. This distinction is obviously tied
to Australia's jurisdictional boundaries, but is somewhat meaningless in
the Internet context where distances are measured in packet travel times
rather than physical distance. Content owned and controlled by
Australians can easily be hosted outside the physical jurisdiction and
indeed evidence was heard that content hosts (of all types of content)
would rapidly move material outside Australia to prevent application of
the content rules. This would result in a major impediment to both the
development and distribution of Australian content.

Another problem raised by the prospect of blocking materials from
outside Australia is the problem of inappropriate and inadvertent
blocking. This is a general concern with any blocking technology, but it
has specific relevance when discussed in the context of compulsory
border filters. One submission drew attention to a German attempt to
block access to a specific set of pages on a large host based in the
Netherlands. The blocking resulted in the entire server being
unavailable, to the significant disadvantage of many other content
providers on that host. The German government was forced to back down.

If any type of blocking is used, it is important to have full disclosure
of blocking lists. Secret lists would be open to abuse and would most
likely lead to a black market for the list itself. In general, any
censorship proposal in a liberal democracy must be open and accountable,
to avoid the possibility of abuse.

The proposal to block international Internet content would only be
possible with the involvement and cooperation of all Backbone Service
Providers. While the bulk of traffic apparently traverses links operated
by a small group of large telecommunications companies, numerous
examples were given about the use of alternative feeds. These include
the use of satellite bandwidth and the routing of connections via
private networks or alternative routes to the main connections to the
United States.

The cost of blocking in both monetary and performance terms would also
constitute a major impediment to implementation. Routers able to
undertake blocking at this scale are prohibitively expensive. Indeed one
of the central issues in the abandonment of blocking in Malaysia has
been the extra costs and performance issues associated with blocking.

On a number of occasions, members of the committee suggested that the
application of Moore's Law would overcome some of technical and
performance limitations of Internet blocking. Moore's Law predicts a
doubling of computing power every 18 months. However, it has been
suggested that networking technology and indeed network bandwidth do not
adhere to this `law'. In any case, the increasing sophistication of
Internet content quickly swallows up any extra available computing

For the reasons discussed in the CSIRO report and in other evidence
before the Committee, the Australian Democrats do not support blocking
as envisaged by the Bill. The use of client-side blocking or blocking at
the ISP to create differential services may be an appropriate part of
alternative content regulation schemes, but there are still concerns
these possibilities.


The Australian Democrats have numerous significant concerns with the
legislation before the Committee.

It is quite clear from the evidence before the Committee that the Bill
does not address the Government's stated goals. The Minister's Second
Reading speech claims that the Bill is intended to:

``... enact a regime which balances the need for the Government to meet
legitimate community concerns about the publication of illegal and
offensive material online, that is commensurate with the regulation of
conventional media, while ensuring that regulation does not place
onerous or unjustifiable burdens on industry and inhibit the development
of the online economy.''

This may be the Government's intention, but as already indicated there
are numerous problems. There is a continuing question as to the extent
of community concerns. It is quite clear that the legislation is not in
line with the regulation of analogous media. The regime is likely to
place onerous and unjustifiable cost burdens on industry and the
community and it would appear to be a major impediment to the
development of the online economy.

The Bill, as presented to the Committee, will result in the creation of
a range of unenforceable laws. This is mostly result of the technical
issues discussed above in relation to blocking.

The creation of such a broad law which is potentially unenforceable
could lead to a number of undesirable outcomes. Perhaps, most
importantly, failure of this law would be likely to lead to demands for
an even more punitive regime of Internet content control. In addition,
there is the danger with such a broad brush approach that the law will
be selectively enforced, leading to an arbitrary system in which
discretions might be abused. In any area of regulation, a largely
unforceable law is likely to lead to undermine confidence in Government
and further distrust from the Internet community.

The Bill attempts to compare the Internet with existing media and draws
on broadcast analogies to justify some of its provisions. The Government
must acknowledge that the Internet is a medium unlike any other. The
Internet is unlike either broadcasting or narrowcasting as it does not
rely on a one-to-many distribution mechanism under the exclusive control
of content providers. In contrast to these media, the Internet allows
all users to become publishers and is based on a `pull' (or demand
driven) publishing model which requires users to actively request
material before it will be provided.

In the regulation of any human activity, we must understand the likely
impact of prohibition. This is an expression of the concern that
prohibition of an activity usually leads to distortions which drive the
market for that activity underground. This has historically led to more
serious problems than those which were originally intended to be
controlled. As past experience amply demonstrates, a regime of
prohibition would be likely to lead to a large black market in which
genuinely offensive (or obscene) materials would have the same status as
merely explicit materials. This would be a highly undesirable outcome.

The Australian Democrats have a number of concerns related specifically
to the legal construction of the legislation.

The use of the phrase ``substantially similar'' (Clause 43(1)(c) ) could
be used in combination with generic descriptions of content to
significantly increase the scope of the content regulation regime. This
has been justified as an anti-avoidance provision.

In explanatory material the Government has repeatedly indicated that the
phrase ``reasonable steps'' in Clause 37 should be interpreted as
meaning those steps that are ``technically feasible''. Unfortunately
neither ``reasonable steps'' nor ``technically feasible'' have been
defined. The lack of concrete definitions is instead being touted as
evidence of the flexibility required to adapt to new technologies.

Clause 12(1) provides that content can not be reclassified within a
period of two years. This is an unreasonable length of time in a fast
moving medium and there is a concern that this provision could be
invoked in combination with the ``similar content'' provision, resulting
in significant impediments to content providers seeking to remedy

The use of Clause 34 to restrict material passing through Internet
service providers could conceivably be used in combination with broad
and generic descriptions of content to force ISPs to exercise editorial
judgement over materials passing through their networks.

The time limits set out in Clauses 35 and 45 are unrealistic when taking
into account the low staffing levels and lean operational structures of
many Internet service providers. Not all Internet service providers have
staff permanently on call.

The penalties in Clauses 78 and 79 are too harsh. Threats of major fines
and Federal Court injunctions are not appropriate in an environment
where the Internet service provider may not be aware of breaches.
Questions of technical feasibility must also be addressed before
establishing a penalty regime which could penalise Internet service
providers in circumstances where blocking mechanisms may not be
appropriate or available.

The powers of the ABA in administering this content regulation regime
have been poorly defined, leaving many issues to the ABA's discretion.
Better definition of many aspects of the scheme would remove some of
this uncertainty. Some of the most important aspects, such as the
educational functions and the operation of the community panel have been
left to the ABA to define.

The question of what content is intended to be regulated by this Bill
has not been carefully defined. It is unclear whether email is to be
included in the definition or whether the definition includes streaming
media (both live and prerecorded). This could result in both uncertainty
and inappropriate application of the provisions.

In addition to these concerns, concerns have been raised about the
complex issues of jurisdiction inherent in any proposal to regulate the
Internet. As has been recommended in previous inquiries, it is necessary
for any content blocking mechanism to take into account the legal and
technical complexities in blocking material originating in other
countries. Particular concerns have been raised about Australia's
liability in trade terms for the blocking of content legal in other
countries, and the possibility of inadvertent blocking of appropriate

The Australian Democrats remain concerned about the role of
self-regulation and co-regulation in schemes regulating content.
Self-regulation clearly leads to the significant possibility of
privatised law enforcement. It is also likely to lead to the protection
of industry interests as a higher priority than the interests of
customers, both publishers and consumers.

Economic Impact and Direct Costs

As one of the few countries in the World with content controls,
Australia would become a less desirable place to host or develop
Internet content. This would be likely to have a dampening effect on the
entire Internet industry in Australia as content providers moved
material overseas to prevent any possible application of the Bill's
content restriction regime.

It is unfortunate that the evidence of many Internet industry leaders
has been ignored in the proposed regime. Many commentators regard this
as evidence that the Government does not understand the industry. There
is concern that the Government is willing to sacrifice the immense
promise of the medium (in economic and cultural terms) for the interests
of a small number of concerned citizens.

An alternative scheme, based on voluntary client-side blocking and a
criminal regime for offensive content, would be unlikely to have the
same dramatic impact on the development of the information economy in

It is difficult to imagine who would benefit from the Bill's proposals
in their current form. Some of the more cynical observers have suggested
that the Government's proposal would be highly beneficial to the large
multinational creators of `family' content. This type of content would
be encouraged by a scheme which introduces uncertainties in the local

The direct costs of the proposals in the Bill would be likely to bring
about a major shake-up in the Australian Internet industry. The
Australian Democrats oppose measures which could lead to a reduction in
the diversity and coverage of Internet service providers in Australia.
These measures would be likely to have a very damaging effect on small
and regional ISPs, and on the Internet industry generally.

Evidence about the direct costs of operating the proposed regime
uncovered significant inconsistencies in Australia's censorship
mechanisms. The major part of the costs of the proposed scheme would be
payments directly from the Australian Broadcasting Authority to the
Office of Film and Literature Classification. In the first year of
operation, a figure of $1.25million has been allocated to pay fees to
the OFLC for the classification of materials. The Australian Democrats
are concerned that there would eventually be a push to shift these costs
to the Internet industry following the commencement of the regime. This
would bring the classification mechanisms into line with those operating
for other media, where user-pays principles have been employed, to the
likely detriment of small and foreign language film-makers.

Possible Solutions

A number of alternative solutions to the problem of Internet content
have been considered on previous occasions. For reasons discussed by
other authors, there continue to be major problems with some of these
alternative schemes.

One proposal which has previously been discussed is the compulsory
labelling of materials. Schemes such as PICS are still under
consideration internationally, but implementation has been delayed by
slow development and by the difficulty of forcing content labelling. It
is likely that labelling schemes will continue to develop and while they
are currently not appropriate, they should remain in consideration.

Another solution proposed in the past and also contained within this
Bill is the use of a hotline for reporting inappropriate or offensive
material. Alone, this has little hope of being a satisfactory solution,
but it would be a valuable component of any content regulation process. 

Client Side Solutions

Providing tools that empower users and operate at the client side of the
Internet seems to be the most workable and desirable type of solution.
However, this requires an understanding by parents and other responsible
adults of their role in the use of the Internet by children and their
own Internet use.

As one of the few studies which has investigated Internet blocking and
filtering technologies, it must be noted that the CSIRO report
specifically endorses client-side blocking technologies as a technically
appropriate solution. The Australian Democrats support the increased
choices and control which is available through the use of client-side

However, the Australian Democrats are concerned by some of the problems
that arise with the unregulated use of client-side filtering
technologies. Numerous cases and studies confirm that these filters
often block material which it would be desirable to make available.
Concerns have been raised about the blocking of sites referring to
health issues such as breast cancer. Gay and lesbian sites, especially
those for teenagers, are blocked by many filtering programs. Other
examples of sites blocked include the anti-racism site `Hatewatch', safe
sex sites, safe drug use sites, sites about feminism and sites about
alternative politics.

The Australian Democrats believe that any use of filters, whether
client-side or ISP based, must be regulated to prevent the imposition of
value systems which are not explicit. Users must know exactly what will
be blocked and alternatives must be made available which do not
promulgate narrow American family values. Systems which are based on
complex weighting schemes, such as that provided by Clairview, should
only be employed after a rigorous and open examination of the inherent
assumptions made about content. Blocking lists and weighting schemes
must be fully disclosed, to prevent abuse. In a democracy, censorship
mechanisms can not be protected as trade secrets.


A large component of any Internet content regulation scheme must be
education, for both Internet users and those placed in supervisory
positions of responsibility.

Education has been envisaged as a part of the current Bill's proposals,
but the Australian Democrats believe that education and responsibility
should be the core of any proposals to regulate Internet content.

A comprehensive education framework would need to include computer
training to enable a greater understanding of the benefits and
limitations of the medium. Education should focus on empowering
individuals and explaining how inappropriate content can be avoided or

Adult Responsibility

In general, the Australian Democrats believe that adult responsibility
is the most crucial component in any attempt to control the way in which
minors use the Internet.

A number of analogies were suggested by witnesses and in submissions,
and it is striking to note that most envisaged a high degree of adult
responsibility for the behaviour of young people. An alternative view
was that the use of the Internet needed to be made safe so that young
people could use it without supervision or guidance.

One submission referred to the stark contrast between the treatment of
the Internet and the physical space. That submission rightly stated that
we would condemn parents who allowed their children to wander in an area
like Sydney's Kings Cross, but we don't seem to have the same concerns
about the Internet. (Mark Newton, Submission 75)

The Australian Democrats are concerned about the reduced significance of
adult responsibility envisaged within the Bill. The Internet should not
be used as a babysitter, and parents and other responsible adults should
be more involved in supervising and discussing the use of the medium
with young people.

Responsible Internet use is likely to be the result of education and
negotiation. Parents, teachers, librarians and other adults need to be
empowered to deal with the issues that arise.

Appropriate Content for Young People

The continued lack of appropriate content for young people is another
factor in the Internet regulation debate. One witness suggested that the
best approach to managing minors' use of the Internet would be to
``create compelling, youth focussed content.'' (Young Media Australia,
Submission 62)

The Australian Democrats support the creation of appropriate content for
young people as a major component of any proposal to manage Internet
usage in Australia.


The Australian Democrats believe that an approach based on regulated
client-side filtering, optionally filtered Internet service (against
either black lists or white lists), education and the creation of
appropriate content would be effective.

This approach has the advantage that the tools are already available.
Client-side filtering and differential Internet services are available
and are easy to use and effective. This approach would be protective of
the rights and freedoms of adults, it would accommodate a diversity of
values and it could provide a system of positive guidance for children.

However, a responsibility based approach requires parents and other
adults to be comfortable with the medium and to be empowered to make
decisions concerning the use of the Internet.

In general, the Australian Democrats would prefer a proposal for
Internet content regulation which was centred on empowerment rather than
a ``command and control'' regime.


A number of witnesses and Committee members have expressed concern about
the ``unseemly haste'' (Electronic Frontiers Australia, Submission 78)
with which this Bill has been drafted, introduced and investigated. It
should be noted that the issues this Bill seeks to address are not new
and have been investigated by Committees over a lengthy period. It is
thus all the more surprising and concerning that there has been a rapid
(and apparently non-negotiable) rush to legislate in this area.

The Australian Democrats are also highly critical of the timing and
manner of operation of the Committee in its investigation and reporting
on this reference. The deadline for submissions was unduly short.
Hearings were held at very short notice with little time for witnesses
to prepare. Indeed, three evenings of hearings were conducted prior to
the closing of the deadline for submissions. This resulted in wasted
time during the hearings while witnesses outlined positions which would
normally have been available prior to the hearing in the form of

As is often the case, the Committee process itself was not used to
expand the Committee's understanding of the issues, but appeared to be
used mostly as a forum in which to discredit witnesses.

Throughout the process leading to the Bill and during the Committee
process, the Minister for Communications has also sought to discredit
any parties not in agreement with the proposals.

The Australian Democrats regret the insulting, demeaning and inaccurate
way in which witnesses and other opponents have been characterised
during this process. In particular, the characterisation of opponents as
paedophiles, or as friends of paedophiles, remains a highly emotive and
misleading aspect of media releases and statements made by the Minister.


In conclusion, the Australian Democrats believe the Bill in its current
form is both unworkable (for the technical reasons discussed above) and
undesirable (due to its impact on rights and freedoms, and because of
its failure to empower responsible adults).

The Bill is likely to be unenforceable and could have a major effect on
the development of the Internet industry in Australia.

The proposal has already embarrassed Australia among international
Internet professionals and it is likely to cast doubt on Australia's
leading role as a liberal democracy.

The Australian Democrats believe that this Bill has been prepared with
undue haste and that consideration should be given to alternative
proposals based on education and empowerment of users, and on an
understanding of the responsibility of those supervising Internet use by
young people.

Natasha Stott Despoja

May 1999 

Senate Committee 1999 << Federal Net Censorship << Internet Censorship/Free Speech << Danny Yee