New South Wales
Internet Censorship Bill 2001

Last Updated: 27 December 2002


Say NO to Net Censorship On 9 December 2002, the NSW Government stated that the Internet censorship laws "will be neither commenced nor repealed" until the current review of the Commonwealth Internet censorship legislation has been completed and the findings considered.

On 6 June 2002, the NSW Parliamentary Standing Committee on Social Issues issued a report recommending that the NSW Government not proceed with its proposed Internet censorship law. (Among other things, the proposed law would criminalise making available content unsuitable for minors online, even if the content is only made available to adults.)

The Committee's report and recommendations are the outcome of a six month inquiry undertaken at the request of the NSW Attorney General. The Committee's report is commendable. It is well-researched and written and it is evident the Committee members and staff spent a considerable amount of time and effort considering the policy objectives, the nature of the Internet and relevant issues. Unlike other Australian Parliamentary Committees that have inquired into Internet censorship, this Committee obviously "gets it"; they understand that the Internet is not like television and is not a movie. EFA hopes the NSW Government will accept and support the recommendations of the Committee, which consists of a majority of members from the political party in Government (ALP). For more information, see EFA's comments regarding the Committee's report and background information below.

Contents:


Status of the Bill / Recent Updates

  • 9 December 2002: The NSW Government Response to the recommendations of the NSW Standing Committee on Social Issues was issued. In relation to the recommendation that the Internet censorship law be repealed, the Government Response stated:
    "A statutory review of the Commonwealth's on-line regulatory scheme (contained in Schedule 5 of the Broadcasting Services Act 1992) is currently being conducted by the Federal Government and is expected to be completed early in 2003. Schedule 2 of the Classification (Publications, Films and Computer Games) Enforcement Amendment Bill 2001 will be neither commenced nor repealed until this review has been completed and the findings have been considered."
  • 6 June 2002: The NSW Standing Committee on Social Issues issued its report titled "Safety Net? Inquiry into the Classification (Publications, Films and Computer Games) Enforcement Amendment Bill 2001" recommending that proposed laws not become effective. It now remains to be seen whether the NSW Government will accept/support the recommendations of the Committee, which consists of a majority of members from the political party in Government (ALP). For more information, see EFA's comments regarding the Committee report.
  • 5, 6 March and 11 April 2002: The Standing Committee on Social Issues held public hearings. Transcripts of the hearings are available online.
  • 7 December 2001: The Standing Committee on Social Issues has called for public submissions to an inquiry into the Bill. The closing date for submissions was 8 February 2002. For further information, see the Committee's inquiry page. (If the link to the inquiry page does not work, visit the Standing Committee on Social Issues main page, and then click on the link to inquiries.)
  • 5 December 2001: The Bill was referred by the NSW Attorney General to the Standing Committee on Social Issues for inquiry and report by 7 June 2002. For further information, see EFA's report on the status of the Bill as at 5 December 2001.
  • 4 December 2001: The Bill was passed by the Legislative Council.
  • 30 November 2001: The Bill is in the Legislative Council awaiting the Minister's second reading speech which is likely to take place during the week commencing 3 December 2001 or the following week. EFA understands that one or more of the cross-benchers intends to move that the Online Services section of the Bill be referred to Parliamentary Committee for inquiry and there is now a fairly high probability that a majority of the Legislative Council would approve referral. Prior to the week ended 30 November, this was most unlikely. At a meeting with an adviser to the NSW A-G on 30 November, EFA was informed that during the prior fortnight the NSW Attorney-General's office had received numerous expressions of concern from organisations, companies, individuals and members of the Parliament. EFA was advised that the NSW ALP (government) would not oppose referral of the Online Services section to a Committee for inquiry.

  • 16 November 2001: The Bill was passed by the Legislative Assembly (lower house).

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Overview and Background

Proposed new Internet censorship laws were tabled in the NSW Parliament on 7 November 2001 by the Attorney-General, Bob Debus. These are included in the NSW Classification (Publications, Films and Computer Games) Enforcement Amendment Bill 2001.

The Bill covers content placed on the web (including archived mailing lists), messages to newsgroups, etc.

Serious criminal justice issues arise, such that the NSW Bill would require major amendments to ensure, at the least, that ordinary people in NSW who use the Internet to communicate are treated no less fairly under criminal law than offline publishers.

Among other things, the Bill criminalises making available content unsuitable for children online, even if the content is only made available to adults. In other words, if you place material unsuitable for minors on a web page, even on a password protected section of your site and give the password only to your adult friends, you could be prosecuted under criminal law. (While a defence is offered, this unjustifiably reverses the onus of proof and requires an Internet user to defend themself in a court of law. The defence is also problematic for other reasons).

"Matter unsuitable for minors" is content that is, or would be, classified R by a majority (not unanimous) decision of the members of the Office of Film and Literature Classification (OFLC) under guidelines designed for classifying cinema films and videos. According to the OFLC Annual Reports, the vast majority of R films are so classified because they deal with social and political issues, referred to in the Classification Guidelines as "adult themes". According to the OFLC classification guidelines "adult themes" include: "verbal references to and depictions associated with issues such as suicide, crime, corruption, marital problems, emotional trauma, drug and alcohol dependency, death and serious illness, racism, religious issues".

See the OFLC Classification Guidelines for more information regarding material classified "unsuitable for minors", that is, material that would be classified at a level higher than "MA". These subjective, complex guidelines will soon be the rules covering what NSW residents (and others) will be allowed to say on-line. It is recommended that Internet users read them carefully.

The NSW Bill is part of the second component of the Commonwealth Internet censorship legislation (effective 1 January 2000). The NSW Government is believed to be the second of the State/Territory Governments to act on the Commonwealth Government's request that they enact complementary enforcement legislation applicable to Internet users and content providers.

The South Australian Government tabled a similar Bill in November 2000 that was not passed by Parliament before the February 2002 election. The new SA A-G re-introduced the Bill on 4 June 2002. Victoria, Western Australia and the Northern Territory enacted Internet censorship legislation (in 1995/96) prior to the Commonwealth legislation and it is not known whether they will amend their legislation to bring it into line with the proposed "national" regime which is more restrictive in some regards than existing laws in those jurisdictions.

EFA Brief Analysis of the Bill

(Note: For more detail regarding the below and many other issues, see EFA's comprehensive analysis of the Bill.)

While the drafters of the NSW Bill have made minor changes to the draft model national legislation issued in August 1999 for public comment by the NSW A-G and some other State/Territories, the NSW Bill is a profoundly flawed document. For example:

  • Serious criminal justice issues arise, such that the NSW Bill would require major amendments to ensure, at the least, that ordinary people in NSW who use the Internet to communicate are treated no less fairly under criminal law than offline publishers.
  • Although the government has stated that it merely intends to make material that is illegal or controlled offline, illegal or controlled online, in a number of ways, the Bill criminalises material online that is quite legal offline.
  • The proposed laws subject ordinary people in New South Wales to criminal proceedings for failure to foresee the classification that "would be" granted to particular material by a non-unanimous decision of members of the Commonwealth Boards of the Office of Film and Literature Classification (OFLC). The recent controversy over the film 'Hannibal' highlights the fact that the members of OFLC Classification Boards disagree over the boundary between MA and R material, as do many other members of the Australian community. The 'Hannibal' case is not an isolated one.

  • The Bill enables prosecution of content providers to commence prior to classification of content. While it may be argued that police would not commence proceedings against an Internet user unless they thought the OFLC would rule that particular content be classified R, X or RC, no useful purpose is achieved by empowering police to commence prosecution on the basis of a wrong guess.
  • Many of the flaws in the document arise from the attempt to force Internet content into a censorship regime developed for an entirely different medium, that is commercial sale and exhibition of movies and videotapes.
  • The Bill does not give content providers an opportunity to take material down when they have inadvertently mis-guessed the classification, but instead it criminalises them.

  • The Bill invites constant enquiry as to the particular State or Territory laws at issue as the law does not specify in which jurisdiction an offence (making available or supply) takes place. It does not define "make available" nor clarify whether content is "made available" in the State where a user downloads it, or in the State where the web server is located, or in the State where the content provider resides. If various States fail to clarify the jurisdictional aspects and, say, Tasmania or Queensland etc introduces more restrictive provisions than NSW, then NSW residents may commit crimes under the laws other jurisdictions. Introduction of legislation in any jurisdiction that does not clarify the jurisdictional aspects sets an undesirable precedent that is likely to have unintended consequences.

  • Existing or proposed classification legislation must be amended to ensure content providers cannot be prosecuted for infringing laws/classification decisions of jurisdictions in which they are not resident. Ordinary people in NSW cannot be reasonably expected to know the laws of every jurisdiction in the nation, and should not be placed at risk of criminal proceedings simply because they chat and/or publish material via an uncontrollable medium that crosses state and national boundaries.
  • The Bill unfairly makes it a criminal offence for adults to make available to another adult information that "would be" rated R by a non-unanimous decision of the Commonwealth Classification Board.
  • During the three years ended June 2000, over 50% of films were classified R because they contained "adult themes", that is, not because of sex, violence or coarse language. According to the classification guidelines "Adult themes may include verbal references to and depictions associated with issues such as suicide, crime, corruption, marital problems, emotional trauma, drug and alcohol dependency, death and serious illness, racism, religious issues." Unless information on these types of topics is provided in a "discreet" manner, that is, "with little or no detail [verbal or visual information] and generally brief" (in accord with guidelines for an MA classification) such information will be rated R and Internet users and content providers at risk of a maximum penalty under NSW criminal law of $5,500 for individuals and $11,000 for corporations.
  • The provision in the Bill is more onerous than existing legislation in Victoria, Western Australia and the North Territory under which it is not an offence to make R classified material available to another adult, as distinct from making it available to a minor.
  • While it is a defence to a prosecution in the Bill for the defendant to prove that access to matter unsuitable for minors was subject to an approved restricted access system, such systems are administratively onerous to the extent that few Australian content hosts would be prepared to incur the costs involved in their setup and administration. It would be far easier to simply set up sites offshore in a country where such regulatory burdens are not imposed.
  • The only approved system to date is that of the ABA which is extraordinarily privacy intrusive, requiring users to provide personal identifying information that goes far beyond proof of age, while not meeting the objective of protecting children more effectively than standard restricted access systems presently in use. The NSW legislation provides no privacy protection. On the contrary, it encourages infringement of users' privacy and, further, in conjunction with Commonwealth law creates defences for businesses and content providers who infringe privacy.
  • There is no obvious means by which a content provider can prove a restricted access system was in place at any given time in the past. Enforcing the use of "restricted access systems" will be the death knell for Australian content which requires an "adult perspective" but does not contain pornography or violence. Meanwhile minors will continue to have unrestricted access to material provided by non-Australian content providers that would be classified R.
  • The effect of the proposed legislation is to implement a ban on adult discourse on social and political issues on Australian Internet sites, including newsgroups, forums, and archived email discussion lists.
  • The OFLC does not provide a classification service for content on the Internet, according to Answers to Questions on Notice tabled in the Senate on 25 June 2001 on behalf of the Comm. Attorney General. Moreover, there are legal, technical and cost issues inherent in the means by which it is claimed the OFLC could (and/or does) provide classifications to Internet content providers (classifying content after printing onto paper or copying onto a floppy disk). In addition, as the Commonwealth has not prescribed classification fees specific to web pages, the OFLC charges some $700 to classify a web page or image ('film'), although such a classification would not necessarily be an effective defence to a prosecution under the NSW Bill. The inability of the OFLC to cheaply and reliably classify web site content shows that the NSW Parliament would be wrong to outsource its Internet censorship to the OFLC.

  • The classification of online content as a "film" creates a number of serious anomalies and unintended consequences. If content providers can be successfully prosecuted for making available "films" that consist of text and static images (e.g. Web pages), then under existing Classification law librarians and teachers (and others) who manage or supervise premises containing computers connected to the Internet could be prosecuted for events beyond their ability to control, eg. "screening"/"exhibiting" objectionable matter and matter unsuitable for minors.

  • Because it is an offence in NSW (and in all States/Territories) to sell an unclassified film, newspaper publishers who presently sell electronic copies of archived newspaper articles online could be prosecuted.

Note: For more detail regarding the above and many other issues, see EFA's comprehensive analysis of the Bill. See also EFA's Action Alert: What YOU Can Do which contains politicians' contact details etc.

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News Reports

  • The AustralianIT: NSW censor bill in doubt, Caitlin Fitzsimmons, 7 June 2002
    "THE controversial internet censorship laws passed by the NSW Government could be repealed after a damning assessment by a parliamentary committee...The report concludes that the proposed model would be 'likely to restrict law-abiding content providers while doing little to deter those with malicious motives'. Instead of protecting children, the laws could make people excessively concerned about content regulation and limit their use of the internet, creating 'a culture of paranoia and self-censorship'."
  • The Australian: Public eyes censorship plans, Karen Dearne, 13 Mar 2002
    "NSW plans to censor the internet have been under scrutiny during two days of public hearings in Sydney. ..."
  • ZDNet: Will NSW opt for Net censorship?, Vivienne Fisher, 11 Mar 2002
    "A public inquiry into NSW's Net censorship bill got underway last week,..."
  • Sydney Morning Herald: The letter that dare not speak its name, David Marr, 2 Jan 2002
    "Right on the lip of the cliff, the Carr Government is hesitating to join the Australian crusade to make the Internet suitable for children. Though it would take miracles rather than laws to achieve this purpose...".
  • Australian IT: Media protests net censorship, Simon Hayes, 18 Dec 2001
    "Pressure from the Fairfax media group was one of the reasons behind a decision to refer NSW's controversial internet censorship bill to a parliamentary committee."
  • Australian IT: Net censorship stalls, Caitlin Fitzsimmons, 6 Dec 2001
    "Despite clearing both houses of parliament, the proposed NSW internet censorship regime has not passed into law."
  • Fairfax IT: NSW looks again at looming online censorship laws, Barry Park, 6 Dec 2001
    "The NSW Government's bid to introduce tough new Internet censorship laws has been referred to a parliamentary inquiry by the state's Attorney-General."
  • Wired: Oz Proposes Tough New Filter Law, Stewart Taggart, 22 Nov 2001
    "A proposed state law here would make it illegal to upload online content unsuitable for minors without an adult verification system in place."
  • Australian IT: States move to censor net, Simon Hayes, 20 Nov 2001
    "NSW and South Australia are moving to pass controversial internet censorship legislation more than two years after Federal Parliament passed national laws regulating the web..."
  • Fairfax IT: Online rights group questions NSW censorship changes, Barry Park, 19 Nov 2001
    "Internet rights group Electronic Frontiers Australia has hit out at proposed NSW censorship laws that will criminalise online content that is unsuitable for display to children."
  • Slashdot: Australian Censorship Legislation, posted by michael, 17 Nov 2001
  • Australian IT: Porn police patrol the net, Lisa Davies, 26 Oct 2001
    "...NSW Attorney-General Bob Debus said yesterday the state Government would introduce the new legislation to address community concerns about offensive material online. ..."

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