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

Majority Report: Discussion

chapter 3



In this Chapter the Committee will summarise and discuss the major
threads of the evidence it received in the course of its inquiry.  The
vast majority of witnesses from the industry and the community are
agreed in principle that material which the Parliament has restricted in
the other, more traditional, media because it is at least offensive to
Australia's community standards of morality, decency and propriety,
should also not be available online.

However, Australian law can only cover content providers and ISPs which
are operating within Australia's jurisdiction.  Since the vast bulk of
material emanates from offshore, outside Australia's jurisdiction, this
legislation provides the only opportunity to deal with offensive
material coming from overseas.

Among dissenters from the above view were a group of Internet users who
expressed total opposition to any form of constraint on the medium's
currently unregulated nature.  Much of their protests are in fact, based
on a complete misunderstanding of the intentions of the Bill, with the
development of a popular mythology that the Bill seeks to ban all
"adult" content.  One submission, from a person with membership of
several peak Internet bodies, made frequent use of the expression
[expletive deleted] because, it was argued, the inclusion of the
expletive would be illegal under the Bill if it was to be posted online
without an adult verification mechanism.  A cursory reading of the
relevant Office of Film and Literature Classification guidelines would
have indicated that such expletives are permitted to be used in M-rated
material at which rating they are not subject to any age-based access

While there may otherwise be a high level of general agreement on the
need to bring uniformity in media content, views diverge on whether
additional legislation is necessary to specifically address the online
issue. Even where it is accepted that legislation is desirable in
principle, there is debate about the material to which it should apply
or, alternatively, that the legislation is pointless, even potentially
harmful to Australia's interests, because it is neither technically nor
commercially feasible to implement.

It is clear, however, that the community expects, indeed supports,
compulsory minimum standards.

To regulate or not

Witnesses made reference to a range of existing statutory provisions to
argue that the Bill was unnecessary.  Reference was made to provisions
of the Crimes Act 1914, the Classification (Publications, Films and
Computer Games) Act 1995 and the Customs Act 1901. The general argument
was that child pornography, for example, is illegal in all transmission
media.  Because Internet sourced material, once stored or downloaded, is
in an illegal form, no further provisions are therefore necessary. There
was also a suggestion that the Bill may be unconstitutional, including
the view that it amounts to an acquisition of property without just

In relation to the latter matter, Mr Donald Markus, General Counsel from
the Australian Government Solicitor, assured the Committee that:

So in certain cases, depending on the business that people have, they
may incur certain costs in complying with [the Bill's] obligations or
they may lose revenue from the kind of business that they were operating
but that, of itself, does not amount to an acquisition of property for
the purpose of the Constitution, in my view.

The argument about the Crimes Act is that section 85ZE already makes it
an offence for a person to knowingly or recklessly use a carriage
service (essentially a telephone service) to menace or harass another
person or to use such a service in a manner which would be regarded by
reasonable persons as being offensive in the circumstances.  The Bill
clarifies the application of the Crimes Act to exclude Internet content
which is of an ephemeral nature to the extent that they are not stored. 
This exclusion likens person-to-person online contact to a private
telephone call. The existing provisions of the Crimes Act will still
apply to offensive material so that, whether by telephonic or online
source, a menaced or harassed victim has a legal basis to make a
complaint.  In either case the carrier or ISP is exempt from criminal

Witnesses have argued that, if the Crimes Act catches the major category
of offensive material, further legislation is unnecessary.  They pointed
to several successful prosecutions where Australians had been charged
for accessing and retaining quantities of child pornography from online

The representatives of the National Office for the Information Economy
(NOIE) told the Committee that the vagueness of the terms 'knowingly'
and 'recklessly' in the Crimes Act raises questions about what is
actually covered.  Interpretation of these provisions was not helped by
the fact that all online-related prosecutions under section 85ZE had
been uncontested.  It was also stressed to the Committee that the Crimes
Act is not a classification scheme, which makes it unsuitable as the
basis for the Government's intended regulatory framework. This
legislation will enable Commonwealth law to intercept such material in

The Bill will also clarify the concurrent operation of laws in the
States and Territories, so that criminal penalties applying under state
and territory legislation dealing with content creators or content
receivers will be dealt with from within their respective jurisdictions.

The Bill's Second Reading Speech makes it clear that the Classification
(Publications, Films and Computer Games) Act may not encompass all forms
of Internet content, so a separate classification procedure is required.
 While not stated, the Committee's expectation is that such online
material as racial vilification material, bomb recipes and the like will
be encompassed within the scheme's terminology of 'prohibited content'
and 'potentially prohibited content'.  According to evidence from NOIE,
the final details of this aspect of the scheme are dependent on the
finalisation of the States and Territories uniform complementary

Finally, the Customs Act, and Regulation 4A of the Customs (Prohibited
Imports) Regulations in particular, is directed at the prohibition of
the importation of objectionable goods.  This is seen by some witnesses
as already providing the appropriate statutory response to the
international dimension of online services. While the Committee did not
receive authoritative advice in this respect, there would obviously be
some difficulties with defining information transmitted internationally
by telephone lines as "goods". Further, as with the Crimes Act issue,
the Customs Regulations apply only to the class of goods that are
prohibited, with no capacity to be used as a classification system.

Analogous media

While there was general agreement with the principle that material which
is banned in other media should be banned online, there was argument
about whether the Bill treated online material in a manner analogous to
its equivalents.

The Bill makes it clear that prohibited content, that will trigger
action by the ABA, is based on the National Classification Board
guidelines for film of either Refused Classification (RC) or X rating,
and material rated R that is not protected by adult verification
procedures.  This regime is most closely aligned to the narrowcasting
model already contained in the Broadcasting Services Act (BSA).

Ms Holthuyzen, Deputy Chief Executive of NOIE, told the Committee that:

I think there are three main reasons the Government has chosen to take
the narrowcasting approach. Firstly, the government recognises the
growing influence of online content and the greater ease of access to
content at home and school particularly without some sort of supervision
of children. Also, I think the access to online services is becoming
less discretionary than, say, access to content and hard copy form...
Also, as higher bandwidths become available and with greater
technological convergence, online services will come more and more down
the broadcasting route than the publications route.

Ms Holthuyzen went on to add that the Government has made a judgement
that, in the future, online services will progressively resemble more of
a broadcasting medium than publications.  NOIE General Manager, Mr
Christopher Cheah, also said:

The Government has basically made a judgement that at the moment, given
the way the technologies are placed, the way the market is at the moment
and the way that services have developed, the style of regime that is
currently applying to narrowcasting would be the most appropriate for
the current state of the market.  It is not a direct link between the
narrowcast service -we are not saying that Internet is the same as

Various industry witnesses took issue with the
broadcasting/narrowcasting comparison, some arguing that the Internet is
like a library where the user selects which book they wish to try. 
Those books are, of course, subject to classification and, at the more
abhorrent end of the scale, may be refused classification or their
access restricted to adults.

The Eros Foundation, the spokesgroup for the adult industry, argued that
the prohibition of X-rated material was inconsistent with national
classification legislation applying in all States and Territories.  They
submitted that it should be restricted to adults, as proposed for
R-rated material, rather than prohibited because X-rated material can be
legally viewed and purchased in all jurisdictions by adults. This is not
the full picture, however.  The X-rating is a special video-only
restricted classification, available only in the two mainland
Territories.  It is available in the States only by mail-order.

The six State Governments represent some 97% of the population of
Australia. In the Committee's opinion, it is entirely appropriate for
the Commonwealth, where possible, to seek to support the States' view of
the undesirability of this material within their borders.  The mail
system is not conducive to such a form of regulation, while online
services are. The Committee strongly supports these particular
provisions in the Bill.  Further, with convergence, allowing X-rated
material online now would, in the future, provide picture quality for
online access to such material by children, a totally unacceptable

The Committee notes that the Select Committee on Community Standards
Relevant to the Supply of Services Utilising Telecommunications
recommended in November 1995 that R-rated material also be restricted
from online services.  Underpinning its recommendation was the concern
that, once available in the home, and in a situation of an inadequate
level of adult supervision, children would have ready access to this
more violent category of material.  That Committee subsequently
recommended in June 1997 that:

The Commonwealth, States and Territories legislate to make it an offence
to use a computer service to transmit, obtain possession of,
demonstrate, advertise, or request the transmission of material which is
or is likely to be Refused Classification (RC) or to be in a restricted
category because it is likely to cause offence to a "reasonable adult"
as described in the National Classification Code.

The Bill does not treat R-rated material in the same manner as RC and
X-rated material, only enabling the ABA to issue a final take-down
notice where there is no adult verification mechanism.  There is no
interim take-down provision, as applies with the other two prohibited
categories.  When asked to comment why this different approach had been
adopted for R material, NOIE's representative noted that:

I think it is partly a workload issue...I guess the administrative
overload was a factor  which came into [the Government's decision].

This regulatory provision places on the ABA a responsibility to
authorise and approve any age verification mechanisms.  The Committee
expects to examine this aspect in its continuing operations.

Technical/commercial considerations

Industry groups placed considerable emphasis in their evidence to the
Committee on the adverse technical and commercial implications for their
operations from having to comply with the various take-down notices. 
They were particularly critical of the practical effects of proposed
section 37(1)(c) which provides for the issue of ABA standard
access-prevention notices, which require ISPs 'to take all reasonable
steps to prevent end-users from accessing [content hosted outside
Australia that the ABA is satisfied is prohibited content or potential
prohibited content]'.

A representative example of the evidence received by the Committee in
this respect was contained in the joint submission from the Australian
Interactive Multimedia Industry Association (AIMIA) and the Internet
Industry Association (IIA), which claimed that the clause was

There are vast numbers of pornographic websites located in the US.  This
legislation requires ISPs to block access to any such sites notified by
the ABA. Blocking involves the use of proxy servers which are expensive
to purchase, cost money and time to maintain and degrade the performance
of the network... The Associations support instead the concept of ISPs
offering differentiated services to their customers, based on the best
available filtering technology.  The Associations do not support the use
of mandatory filtering technology across the entire network because
filtering technology does not operate to restrict access to specific
sites, and occasionally (and sometimes often) inadvertently blocks
access to legitimate sites.

Internet industry witnesses provided the Committee with a range of
evidence about the current availability of differentiated services, the
strengths and weaknesses of filtering technology, the reduction in
performance standards (particularly speed of access) and the cost of
compliance.  Particular reference was made to a report by CSIRO to NOIE
in June 1998 that concluded that content blocking implemented purely by
technological means will be ineffective, and should not be mandated.

From evidence given by IIA and OzEmail representative, Mr Michael Ward,
the Committee was informed that the Internet industry is already
offering a range of filtering software products and differentiated
services, which they are choosing to offer as a normal commercial and
marketing opportunity, as well as shutting down news groups and sites
that might be carrying child pornography.  

The Committee heard from Dr Philip McCrea, one of the co-authors of the
June 1998 CSIRO report.  He told the Committee that the report had
concluded that filtering is technically possible. When done by backbone
service providers, possibly packet level filtering would be the most
appropriate.  When done at the ISP level, then probably filtering
against "black lists" would be the most appropriate.  While the report's
conclusion was that filtering is best done closer to home,  Dr McCrea
told the Committee that:

The second approach requires recognising that it is possible to provide
some sort of filtering by an ISP.  Our conclusion was that this is
probably the most effective form of filtering.

The Committee also received evidence from Mr Alan Jones, Chief Executive
Officer of Clairview Internet Pty Ltd, which contradicted much of the
IIA evidence about the adverse impacts of filtering on ISP performance
and costs.  Mr Jones argued that there are solutions for most if not all
of the claimed adverse impacts.  Mr Jones said:

One issue that was brought up in the CSIRO report that I found
interesting was the comments of how e-commerce could be hurt by such
blocking. Whilst it is true that blocking will hurt e-commerce sites
that co-host pornographic material with their sites, I think the worry
of it will be almost negligible.

Mr Jones added:

We have pushed the envelope out a little bit further than what it was
six months ago when the CSIRO report was written.  Does it have
failings?  Yes, it does.  Is it perfect?  No, it is not.  Is it
technically feasible to do some of those things [use technology to
prevent access]?  I think the answer is that it is becoming more and
more so, yes.

Representatives of AOL Bertelsmann Online Services provided similar
evidence to Mr Jones about their capacity to meet community expectations
of safe online access for children and families.  Managing Director, Ms
Carol Veriga, told the Committee that:

AOL is committed to supporting the principles that children should be
protected from harmful and illegal content... It is due to this
commitment that AOL has become an innovator in developing comprehensive
tools such as parental controls, and we are constantly providing member
education in order to give consumers the control of what they see at a
household level.

AOL emphasised that of its 17 million members, 53% have families and, of
that group, some 82% use the parental control systems. Dr Dorothee Ritz,
AOL's Business Affairs Director, stated:

We think that is a very strong argument that these parental controls, if
they are made easy, do work and parents can use them.

In a second CSIRO report, tabled by NOIE on 3 May, one point made was
that the performance of a proxy server having ample capacity would be so
minimally affected by filtering that the user would be unlikely to
notice.   Thus, it seemed to the Committee, that the industry's concerns
related to the implications of the apparently larger scale of
intervention expected of it by the Bill, than by any fundamental
objections to the concept of content filtering.

The Committee took up such industry concerns with Government
representatives.  Ms Holthuyzen emphasised in her evidence to the
Committee that the Bill was only one part of the Government's framework,
including networking with international agencies, police agencies and
regulatory agencies to try to further develop means to address the
overseas content provider issue.  Clearly, if by strong international
cooperation and action the amount of problematic material posted online
is minimised, the lesser is the need for Australian ISPs to have to try
to bar it.

 She told the Committee:

The Government...is not mandating any particular technology. It is not
mandating that people must have proxy servers or anything else. It is
asking the industry to come up with what the best solutions are...I
think there is a range of flexible approaches in there that can be
adopted by the industry...


What the Government has tried to do in this Bill is put in place
provisions which - I guess it is trying to make a balance in judgement -
on the one hand, are limiting and preventing access to objectionable
material but, on the other hand, obviously are not placing entirely
onerous and unjustifiable costs on the industry so as to inhibit its
investment. That clearly at the end of the day is a balancing
exercise...That is one of the reasons why, in terms of the codes of
practice which are to be developed by industry and put into place, the
Government wants the industry to come up with the solutions about how
some of these mechanisms are best delivered.  Because technology in this
area is changing rapidly all the time, it may well be that new methods
and procedures come along that can be put in place and the flexibility
is built in the codes to enable them to do that

The Government's use of industry codes of practice as a mode of
co-regulation in the online industry mirrors its approach to the other
broadcasting services regulated by the BSA. Applying the model to an
industry where technological development is proceeding at considerable
speed, the Committee notes that there are positive benefits from
maximising the capacity to frequently and rapidly update a code of
practice to take account of the most current developments, compared to
the rather more tortuous path of statutory amendment. 

Draft codes of practice have been under consideration by the IIA for
some time.  The IIA currently represents only some 50 to 60 of the over
600 ISPs in Australia and its representatives told the Committee that it
anticipates that not all ISPs will readily join their organisation. The
Committee also notes with concern that the IIA representatives designate
its code of practice as 'voluntary'. It appears that much work remains
to be done for the current Government reliance on industry codes of
practice to be fulfilled in practice.

The NOIE witnesses provided important evidence about section 37(1)(c)
and the meaning of "reasonable steps". Ms Holthuyzen said:

An important thing about this provision is that this is the default
position in terms of access to international content. The idea is that
this is a requirement that falls on the service providers if a code is
not put in place by 1 January or the standard is not made by 31 March. 
If a code is developed and put in place, the code overrides this
particular provision because the code itself in those areas would
provide the steps, procedures and matters needed to be gone through
which would then be endorsed by the ABA.

The Bill provides that the ABA will be the judge of the reasonable steps
that an ISP would have to take to prevent end-users gaining access to
'objectionable' material.  The ABA will also be the regulatory body
monitoring the online industry's codes of practice, in a similar role to
that it has performed for the past six years with the 'traditional'
broadcasting industries.  ABA Chairman, Professor David Flint, told the
Committee that he sees the expression 'reasonable steps' as an objective

We would say: what would the reasonable person do in these
circumstances?  It would then be for them [an ISP, for example] to say
'We have taken all reasonable steps or what we would consider to be
reasonable'. We would have to say what we think is the reasonable thing
to do in this industry.

Some of the matters cited as likely to contribute to the ABA coming to
the view that reasonable steps had been taken were: that the latest
filtering technology had been applied; possibly contacting the source of
the offending material and asking them to take action to avoid a breach
of the law in Australia, raising international trade and protocol
agreements and private contracts, negotiation, mediation and attempts at
dispute resolution, where appropriate.  ABA Deputy Chairman, Mr Gareth
Grainger noted that:

The fact is that every case would have to be considered on its own facts
and its own circumstances.  It is difficult to give you a blanket answer
now, and we simply cannot, as to what might be reasonable steps. We
would have to look at the approach we were going to take in each case.

The NOIE witnesses also emphasised that the Government's intentions in
this respect, as set out in Clause 4 of the Bill, are to enable the ABA
to address public interest considerations in a way that does not impose
unnecessary financial and administrative burdens on ICHs and ISPs.  Thus
the cost of compliance may be a proper matter for the ABA to take into
account in relation to what actions it is reasonable to expect of an
ISP, especially smaller ones.  Mr Cheah told the Committee:

The Government accepts that no blocking technology is going to be 100
per cent effective, and that is what the bottom line of the CSIRO report
is really saying -that it is not possible to come up with a blocking
technology that is going to be 100 per cent effective 100 per cent of
the time.

The Committee wishes to draw attention to the following statement of US
Attorney-General, Janet Reno:

I think you have got to balance First Amendment rights with other
rights, and you've got to look at how the Internet is used.  But one of
the things that I have discovered ... is a kid will know that he
shouldn't go into a certain neighbourhood, but he doesn't know that
about the Internet.  And we have got to devise ways that parents and
children become more acquainted with the Internet:  what the pitfalls
are, what the dangers are.  And parents ought to be able to have tools
when they have to work, when they're not available to supervise what
their child is doing, to make sure, if they want that they can pursue
the situation either through a block of certain Web sites or an
itinerary where the child has been that day on the Internet.

The Committee concludes by noting, with approval, the following
sentiments in the Government's second reading speech: 

It is not acceptable to make no attempt at all on the basis that it may
be difficult.  Nor is it acceptable that community standards applicable
to conventional media do not apply to the Internet - what is illegal or
controlled offline should also be illegal or controlled online.

Self-regulation, even with the industry's stated best intentions, is not
adequate. Without legislative pressure, there is no incentive for the
industry to seek better, faster, cheaper ways of achieving the outcome
apparently desired by the Australian Government on behalf of the
Australian community- that its citizens are able to take control of what
standards of content it wishes to accept in its media, irrespective of
the means of delivery.


The Bill implements a comprehensive framework for action by the ABA when
its attention is drawn by complaints to offensive material on-line and
it provides for a number of sanctions to be applied.  Penalties of up to
$5500 for an individual and $27500 for a corporation can apply for
breaches of an online service provider rule for each day the
contravention continues. Perhaps not surprisingly, the industry
representatives saw such sanctions as excessive.  Ms Holthuyzen
explained them by stating that:

The first one [sanction] we would expect is that, within the codes
themselves, there would probably be sanctions or incentives. Because the
codes are voluntary in terms of getting compliance, you might be able to
deal with that by withdrawing association privileges. The incentives of
having compliance are perhaps being able to display compliance symbols
so that you are an ISP that people will want to deal with more. The
first level, I guess, is within the codes themselves.

The second level is that the ABA can actually give warnings in relation
to breaches of codes, standards or rules. In fact, thirdly, the ABA can
also direct ISPs to take particular action in terms of how to comply
with the code of practice, Finally, we come to the fact that, if you
fail to comply with the take-down notice, the ABA can actually apply to
the courts for action. Fines are imposed on a daily basis for each day
there is a continuing breach. Then the court would decide on the level
of penalty if you got that far through the process, but I guess we would
hope that the ISPs, and ICHs would take action prior to being taken to

The penalties able to be imposed under any piece of legislation are a
demonstration of the seriousness with which the community, through the
Parliament, places on an issue.  For its part, the Committee believes
that the penalties proposed by the Bill are necessary to impress on ISPs
that it is in their commercial interests, and too risky, to leave
problematic material online.  Such penalties will not only encourage
compliance but also provide an incentive for technical inhibitors to
filtering or blocking to illegal or objectionable material to be

International comparisons

Australia is not alone in being concerned about Internet content. While
there is a growing commitment on the part of many countries to tackle
concerns about Internet content by way of international cooperation,
many countries have begun implementing their own regulatory measures in
relation to on-line services. Australia has a history of rapid uptake of
new technologies and the Internet is no exception. As such, it is not
inappropriate that Australia devise a system of regulation that accords
with its particular needs and which reflects the legitimate community
concerns regarding the publication of illegal and offensive material
online, while seeking to minimise onerous or unjustifiable burdens on

Australia's regulatory regime, however, has not been developed within a
domestic vacuum.  Australia is a participant in a range of international
forums, including OECD and UNESCO committees. Such cooperation is vital
in terms of understanding what measures are being developed
internationally in order to inform debate and to seek to develop the
most effective solutions back home in Australia. 

Ms Holthuyzen tod the Committee that:

Everybody is struggling with these issues - about how to deal with them
and how to come to terms with them and how best to protect children and
deal with this sort of content. I think it is partly a learning
experience together, but the government has obviously made a specific
decision on how it wishes to take it forward from here. 


...we look at what other people are doing but, in Australia itself, we
look at the particular circumstances and the changes that are occurring
here, the growth of the Internet and the particular community concerns
that have arisen. The Government has, I guess, tried to develop a policy
which addresses those concerns and takes the issues forward. In a sense,
we are not relying on what other countries do. I guess we are trying to
find and put in place a proposition and a proposal that the government
thinks is best for Australia.

Furthermore, Ms Holthuyzen noted:

We are aware of a range of issues that have been occurring
internationally and I guess they vary from country to country. The USA
have had some attempts to put in place particular provisions to restrict
on-line content. As you are probably aware, some of those were overruled
by the Supreme Court on the basis that they violated the First
Amendment. But I think the important issue that is interesting there is
that the majority of people in those cases were not saying it was not a
reasonable idea to regulate content in this area. It was really a matter
of developing a proposal which actually fitted within the Constitution.

We understand that the EU is also examining and trying to harmonise ways
to look at illegal and harmful content. They are also looking at some of
the methods of industry self-regulation, encouraging filtering software
and things like that. So there are some processes within the European
Union where they are attempting to examine these issues as well. 


The Committee is unable to provide a comprehensive critique of
international developments in this field.  Naturally, the topic is a
major study in its own right and, given its dynamism, it is unlikely
that justice could be paid to the topic in this report.  The US
situation, where the Communications Decency Act was struck down by the
Supreme Court, as mentioned above by Ms Holthuyzen, is naturally a cause
for international concern because the US is acknowledged as a major
source of problematic material.  It is nonetheless understood that the
US authorities, particularly the Federal Bureau of Investigation, will
cooperate with the international law enforcement community where their
attention is drawn to illegal material emanating from a source within
the US.

The ABA provided the Committee with a copy of a UNESCO report published
in October 1997 entitled The Internet and some international regulatory
issues relating to content. The report was a comparative study of the
approach to regulation of online services of four countries, including
Australia, Malaysia, Singapore and the United Kingdom. Although already
dated, the report contains some useful material.


Malaysia had adopted a substantially self-regulatory approach to
Internet regulation. In a number of press statements the Malaysian
government had articulated that there would be no censorship of the
Internet. However, the Prime Minister, Dr Mahathir was reported to have
said that, `there should be some international agreement as to what can
or cannot go on this free media (Internet) in response to pornographic
content'. The Malaysian government opted to regulate the Internet by
imposing restrictions on the Conditions of Service of the two Internet
service providers, Joint Advanced Research Integrated Networking
(JARING) and Malaysia Telekom Berhad (TMNet).  Furthermore, the
Malaysian regulatory regime was supplemented by a number of
```cyberlaws' which related to information flow and use of the

For example, customers of JARING are bound by the JARING Conditions of
Service. MIMOS Berhad may terminate the membership of JARING members who
breach the conditions of service. Some of the conditions relate to
content and access including, for example, ``members shall not use the
JARING network for any activities not allowed under any law of

In evidence before the Committee, Mr Peter Upton, Executive Director of
the Australian Information Industry Association, advised that Malaysia
had totally abandoned any attempt at blocking Internet content,
essentially because it was seen as a major disincentive to investment. 
The ABA's Mr Grainger told the Committee emphatically, however, that:

... it is true to say that whatever noises Malaysia is making about this
issue, they do not intend to allow problematic content on the Internet
in their country.


'The Singapore Broadcasting Authority (SBA) is guided by three
philosophies: public education, industry self-regulation and community
involvement.'  It is the statutory duty of the SBA to ensure that
nothing is included in any broadcasting service which is against public
order interest or order, national harmony or which offends against good
taste or decency.

The Singapore model adopts a class licence scheme for Internet service
providers and content providers, regulating the conduct of members of
the industry and the content allowed on-line.  'The aim of the class
licence scheme is to impose minimum standards through an automatic
licensing framework.' Where the SBA determines that a breach of a class
licence scheme has occurred, it has the option to either cancel the
class licence in respect of the class licensee, or to impose a fine.

Furthermore, the SBA has issued an Internet Code of Practice, pursuant
to its powers under the SBA Act,   which came into effect on 15 July
1996. All Internet content providers and ISPs who are licensed under the
Act are automatically bound by, and required to comply with, the
Internet Code of Practice.

United Kingdom

The United Kingdom has also adopted a self-regulatory framework within
which service providers are required to operate. The foundation of the
self-regulatory framework is the `R3 Safety-Net proposal' which is
overseen by the Internet Watch Foundation.

 'The R3 Safety-Net was adopted and endorsed by the Internet Service
Providers Association (ISPA-UK), London Internet Exchange (LINX) and the
Safety-Net Foundation (now the Internet Watch Foundation). The proposal
was developed in discussions with industry facilitated by the UK
Department of Trade and Industry, the Metropolitan Police and the Home

Under the UK model of self-regulation, ISPs who choose not to comply
with the regulatory regime by removing illegal material once informed of
its existence, may be prosecuted under the normal processes of law. For
example, ISPs may be prosecuted under the Obscene Publications Act 1959
or the Protection of Children Act 1978. 

In its endorsement of the R3 Safety-Net proposal, the UK Department of
Trade and Industry stated:

The basis for these proposals is that existing law applies on-line as it
does to other media. Internet service providers have a liability in law
for material which they host on their servers, and it is therefore in
their best interests to ensure that illegal material is removed. Service
providers who cooperate with the proposals will reduce their risk of
prosecution, by demonstrating that they have done all that can
reasonably be expected to comply with the law.


Resolution of much international concern about Internet content can only
effectively be addressed by international cooperation.  The Committee
recognises that total uniformity is unrealistic but it is reassured that
Australia is a participant in the negotiation process.  It is apparent
that the provisions of the Broadcasting Services Amendment (Online
Services) Bill 1999 are not significantly different to a number of
models currently operating internationally. What is important, is that
Australia has sought to draw on the best practice components of other
regulatory regimes, while adopting measures that meet the specific
expectations of Australians.

Community education

The Government's approach to the resolution of the problem of,
particularly, children gaining access to inappropriate online material,
does not rely on regulation alone. There is a community consensus,
clearly shared by the Government and reflected in its proposals, that
community education is an important part of the framework to regulate
online services.  The Committee wishes to state at the outset that it
views community education as an important part of the package of
measures put forward by the Government but it notes that, at the end of
the day, it does not represent a solution to the problem of
inappropriate material being accessible online. 

This issue received considerable attention at the Committee's hearings,
although its relevance to the Bill before the Committee is limited to
the extension of the ABA's functions in proposed section 90 as follows:

to advise and assist parents and responsible adults in relation to the
supervision and control of children's access to Internet content.

to conduct and/or coordinate community education programs about Internet
content and Internet carriage services, in consultation with relevant
industry and consumer groups and government agencies;

Witnesses expressed general agreement that although the industry and
government have roles to play in the regulation of Internet content, so
too, parents and other members of the community have a responsibility. 
For example, Young Media Australia stated:

... we feel that we represent the broad parent community that feels that
it is not really across the more technical aspects of some of these
issues, yet they are being told on a daily basis that virtually all the
responsibility for doing something about the protection of their
children from any harmful effects of the technology is entirely their
responsibility.  We agree that parents ought to take a great degree of
responsibility but, as with other forms of media, we also believe that
there should be a triangular partnership on this matter between the
Government, industry and the community, in particular the parent
community, and that there ought to be very solid and firm commitment to
a partnership of this kind.

The key, however, to parents and other community members being able to
play a valuable role in the process depends very much on the
availability of information. Ms Holthuyzen told the Committee that
educating parents about the options available to them on the issue of
regulating Internet content was a key part of the Government's strategy.

Mr Peter Coroneos, Executive Director of the Internet Industry
Association (IIA), noted:

I do not think anyone in this room would argue that the responsibility
is to be slated straight back to industry or to government to solve. 
Just as we have laws for controlling motor vehicles and road safety and
we have speed limits and everything else, by and large the fact that we
do not have accidents on the road every day in Australia to the extent
that might occur is due to the fact that drivers are taking
responsibility for their own conduct.  In the same way, we think there
is a very strong argument that parents ought to be assisted in every
possible way to take some of that responsibility back.

His IIA colleague, Mr Michael Ward, told the committee that, in his
opinion, it is a collective responsibility to inform the community about
the filters and tools available to effectively block undesirable
material from the Internet.  He added that the IIA has been considering
ways to provide additional information to parents and suggested that
there needed to be a central repository of information that parents can

The statistical evidence shows that children and teenagers are far more
likely to access online services than adults.  This is because it is
still relatively new technology, use is encouraged in schools (and
discouraged in many workplaces) and is available in only a minority
although rapidly growing number of family homes.  Because of this
imbalance between adults and children it is even more critical that
responsible adults have the capacity to supervise their children's use
of the Internet:

It is important, therefore, that parents and other carers of children
are provided with access to information that can assist them to work
with their children in making the online experience constructive and
rewarding.  Community education and awareness will assist Australians to
embrace the enormous potential of online services while avoiding the
potential pitfalls.

The Committee notes with approval that there are a number of community
education projects and programs already in operation, which include both
government and non-government initiatives, and others which have been
developed by the education sector.

The role of the ABA 

The ABA has been working in the area of the regulation of Internet
content since 1995.  In February 1998 it convened the Children and
Content Online Task Force which reported in June 1998.  The ABA has
developed education strategies, in particular, a web site called
``Australian Families Guide to the Internet'', launched in November
1998, and has been involved in the development of proposals for a
hotline to be based in police crime stoppers units.  The ABA has
attended international conferences (like the UNESCO Asia-Pacific
Regional Experts Meeting in Seoul) and other international forums on the
regulation of Internet content and related issues.

Mr Grainger told the Committee that the community education part of the
strategy to regulate Internet content is crucial:

Wherever you go in the world and whomever you talk to in the world who
is dealing with the online issue, the issue of community education and
of the education of parents, teachers and others entrusted with care of
young people is absolutely fundamental to this area.

In terms of the educative function entrusted to the organisation, ABA
Director of Policy and Content Regulation, Ms Andree Wright, told the
Committee that at this stage the ABA would like to build upon the
family-friendly web-site and to develop that as the ABA's primary
mechanism for speaking to the community, for both users and would-be

The Committee notes that in addition to the funding required by the ABA
to obtain classifications from the Classification Board (estimated at
$1.5 million per annum) an appropriate level of funding will also be
required in relation to its other new responsibilities, like community
education and an advisory service to parents. Mr Grainger advised the
Committee that discussions are currently underway with the Minister and
the Department about the ABA's resource needs and a new policy proposal
is proceeding. 

Community advisory body

The Bill's Second Reading Speech noted that, as part of the framework to
regulate online services:

A community advisory body will be established to monitor material,
operate a `hotline' to receive complaints about illegal material and
pass this information to the ABA and police authorities, and advise the
public about options such as filtering software that are available to
address concerns about online content.

The Committee notes the advice in the Explanatory Memorandum to the Bill
that, in the short to medium term, Commonwealth funding will be required
to establish the community body and to assist with its ongoing
administrative costs.  The establishment costs are estimated as being
$0.2 million, with an ongoing annual funding of $0.5šmillion.

When questioned about the adequacy of government funding, Ms Holthuyzen
told the Committee that, as part of the industry codes of practice, the
industry would be encouraged to set up appropriate regimes, mechanisms
and education programs to assist parents:

It is not just the government spending money to provide information
about this; it is the industry doing so as well.

The ABA submitted to the Committee that both it and the Internet
industry supported the establishment of a hotline that would enable
users in Australia to report instances of illegal content on the
Internet.  A number of countries operate hotlines for this purpose,
including Belgium, the Netherlands, the UK, Malaysia and the USA. 
Generally, the hotlines are linked to law enforcement agencies.  One of
the recommendations of the Children and Content Online Task Force was
the establishment of a similar hotline in Australia.

The ABA told the Committee that it knew little about the Government's
announced `hotline'. A number of models are possible.  Ms Wright
informed the Committee that the advisory body could operate as a hotline
by receiving information and passing the information to the ABA.  The
advisory body could also assist members of the public to formulate their
complaints and provide information about available mechanisms whereby
parents can select material or supervise the online services accessed by
their children.  

Ms Wright also mentioned that the ABA had recently worked with
community, government and police organisations on developing a hotline
to be operated by police units.  Alternatively, the advisory body could
model the Internet Watch Foundation in Britain.  That organisation
operated via the use of telephone numbers initially but found that the
most convenient and most used method of complaint making was by
electronic means.

The Committee understands that the exact nature and terms of reference
for the advisory body are not yet settled.  When asked about that body,
Ms Holthuyzen told the Committee:

We are still working through how that body will exactly work and
obviously that needs to be established before January 2000.  The idea of
the body is that it will certainly have both community and industry
representation on it.  In regard to its main functions, obviously it
will take complaints and pass them on to the ABA as relevant.  It will
certainly be an education body to provide information to parents about
filtering arrangements or how to control access of their children to
services.  It will also, I think, be doing some surfing to see whether
it finds any particular sites as well. Basically it is threefold.

In response to an inquiry from a Committee member about the role of an
education campaign to educate parents on ways to exercise control over
children's access to `unsavoury' Internet content within their own home,
Ms Holthuyzen said:

There are two answers to that.  One of the aims of this community body
which is going to be established is to provide advice particularly to
parents in relation to means and avenues for the to deal with their
children's access to the Internet.  Already on its own web site, the ABA
has quite a lot information directed at parents in terms of children's
access to the Internet.  A key part of the strategy also is getting
parents to understand and be aware of the options and possibilities
available to them to be able to deal with this issue.

One of the objectives of the advisory body would be to close the gap
that exists between teenager's and children's use of the Internet and
the capacity of responsible adults to supervise them.  Mr Cheah
suggested that the community body would raise its profile so that people
would identify it as the place to go for assistance about matters
associated with Internet supervision:

It is probably in a better position to provide advice and the right
level of confidence to the sorts of people you are talking about.  Those
parents in the over-45 category are feeling a bit nervous about the
Internet.  They are asking questions and saying, `Before I get an
Internet connection for our family, I want to have a reasonable degree
of confidence that this is actually going to be controllable.

Mr Cheah described some of the information he considered the advisory
body might offer.  The community body could have a hotline and people
could access it for information about the options available on `clean
services', filtering software and particular products.

The Committee welcomes the establishment of the proposed community
advisory body. It will be an important adjunct to the ABA and will, in
the Committee's opinion, give this important element of the Government's
package the level of priority attention it deserves.

Finally, the Committee wishes to highlight aspects of the evidence of
the Australian Library and Information Association, including that it
perceives a librarian's role as monitoring a child's use of, but not
providing supervision of, Internet access and content.  Its Acting
Executive Director, Ms Jennefer Nicholson told the Committee, for

Regulatory challenges should not prevent libraries from protecting the
freedom to read in the online environment, producing the best Internet
experience for all users.

Ms Nicholson noted that there was one public library in Queensland that
had elected to implement filtering technology but, she claimed:

... a lot of councils have considered the matter of applying filters and
they have usually concluded that they see it as a form of censorship and
have elected not to do it.

The realty is, of course, that the community does apply censorship in
all other media, including in relation to the books and magazines that a
library may make available.  The Committee is strongly of the view that
similar constraints should also apply in relation to online material. 

The Committee took evidence from several industry participants about the
availability of differentiated services, use of which seems to prevail
in the education sector.  It seems to the Committee that libraries
should offer filtered or differentiated services, perhaps by designating
certain terminals for certain age groups.  Further, given the almost
constant use of Internet terminals within public and private libraries,
the Committee believes that the Association's members are ideally placed
to play a significant role within the Government's regulatory framework
and it urges the Association to develop an appropriate protocol in this
respect.  The Committee is surprised about the claimed attitude of local
councils and it will take up that issue with them later.

The Committee cannot stress enough its support for community education
programs as an aid to parents and teachers, and librarians, in the
current situation where technology cannot be relied on to give the
necessary level of assurance that children in their care will not access
unsuitable material online.  It urges the Government to ensure that the
ABA and the community advisory body are adequately funded to enable them
to properly discharge their online community education functions.  In
this respect, the Committee was concerned to hear the evidence of Young
Media Australia, a highly respected community group with an outstanding
record of achievement in the media field, which received a Commonwealth
Government grant to establish its CyberSafety project, but which is now
struggling to maintain momentum for want of follow-up funding.


In conclusion, the Committee believes the Government's approach
accommodates emerging technologies, recognising that what is not
possible today may be possible tomorrow.  The Committee also believes
that while emerging technologies will always entail people finding ways
around technical restrictions, overall success should also take into
account general compliance rather than simply measure universal
compliance.  However, several areas still require further clarification.
 These include: the lack of a specific reference to 'technical
feasibility' in the legislation; the practical difficulties of complying
with 'take down' orders, for example, on non-working days; further
explanation of the differing roles of States and Territories with the
Commonwealth; and the need to clarify the responsibility of Internet
content providers.  The Committee also believes that the reference in
the legislation to 'unnecessary financial burden' be further examined
with a view to making clearer what the term actually means.

 	Evidence, 3.5.99, p. 316.

 	Evidence, 29.4.99, p. 123.

 	Evidence, 29.4.99, p. 148.

 	Evidence, 29.4.99, pp. 119-20.

 	Evidence, 29.4.99, p. 133.

 	Report on Regulation of Computer On-line Services Part 3, Senate
Select Committee on Community Standards Relevant to the Supply of
Services Utilising Telecommunications, June 1997, p. iii.

 	Evidence, 29.4.99, p. 126.

 	Submission no. 64, Submissions volume, p. 559.  Emphasis in original

 	CSIRO report: Blocking Content on the Internet: A Technical
Perspective, June 1998.

 	Evidence, 27.4.99, pages 4-5 and 52.

 	Evidence, 3.5.99, p. 166.

 	Evidence, 3.5.99, p. 165.

 	Evidence, 3.5.99, p. 284.

 	Evidence, 3.5.99, p. 293.

 	Evidence, 3.5.99, p 243.

 	Evidence, 3.5.99, p. 246.

 	Submission volume, pp. 165-6.  CSIRO report: Technical Aspects of
Blocking Internet Content, April 1999, pp. 5-6.

 	Evidence, 29.4.99, p. 128.

 	Evidence, 3.5.99, pp. 300-1.

 	Evidence, 3.5.99, p. 300.

 	Evidence, 29.4.99, p. 121.

 	Evidence, 27.4.99, p. 21.


 	Evidence, 29.4.99, p. 137.

 	Quoted in Evidence, 3.5.99, pp. 290-1.

 	Senate Hansard,  21 April 1999, p. 3963.

 	Evidence, 29.4.99, p. 143.

 	Evidence, 29.4.99, p. 135.

 	Evidence, 29.4.99, p. 134-35.

 	United Nations Educational, Scientific and Cultural Organisation, The
Internet and some international regulatory issues relating to content,
October 1997, p. 36.

 	Ibid, p. 37.


 	Evidence, 28.4.99, p. 94.

 	Evidence, 27.4.99, p. 14.

 	UNESCO report, op cit, p. 38.

 	Singapore Broadcasting Authority Act 1994, paragraph 6(2)(c).

 	UNESCO report, op cit, p. 39.

 	Subsection 21(4) of the Singapore Broadcasting Act.

 	UNESCO report, op cit, p. 42.

 	Ibid (and see http://dtiinfo1.dti.gov.uk/hol/).

 	Evidence, 3.5.99, p. 226.

	Evidence, 29.4.99, p. 144.

	Evidence, 27.4.99, p. 41.

	Evidence, 27.4.99, p. 45.

	ABA Submission, Submissions volume p. 82.

 	See ABA submission pages 9-11 for comprehensive details (Submissions
volume pages 82-84).

	Evidence, 27.4.99, p. 5.

	Evidence, 27.4.99, p. 16.

 	Senate Hansard, 21 April 1999, p. 3958.

 	Evidence, 29.4.99, p. 145.

 	ABA submission, Submissions volume p. 82.

 	Evidence, 27.4.99, pp. 12-13.

 	Evidence, 29.4.99, p. 125.

 	Evidence, 29.4.99, p. 145.

 	Evidence, 29.4.99, p. 145.

 	Evidence, 3.5.99, p. 190.

 	Evidence, 3.5.99, p. 196.

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