Amendments to FOI Act: Communications Legislation Amendment Bill (No. 1) 2002

Last Updated: 19 September 2003

On 9 September 2003, amendments to the Freedom of Information Act 1982 ("FOI Act"), designed to further prevent public scrutiny (and potential criticism) of the operation and administration of the Internet censorship regime, were passed by the Senate.

The amendments were passed on the vote of the Coalition Government (Liberal & National Party) Senators and the four independent Senators: Senators Brian Harradine, Len Harris, Meg Lees and Shane Murphy. The ALP, Democrats and Greens Senators sensibly voted against the amendments.

The amendments, contained in Schedule 2 of the Communications Legislation Amendment Bill (No. 1) 2002, exempt entire documents (that do not contain information identifying prohibited content) from disclosure under FOI. The government provided no justification whatsoever for these new broad exemptions. Claims made, during the Parliament debates and in media reports, that the changes were necessary to prevent people accessing child pornography by use of FOI law are complete nonsense.

During the Senate debate on 9 September 2003, Senator Brian Harradine and Senator Richard Alston made a number of non-factual statements and allegations about EFA. EFA wrote to the President of the Senate seeking a right of reply in accord with Senate Privileges Resolution 5. On 18 September 2003, the Chair of the Senate Committee of Privileges (Senator Robert Ray) presented a report to the Senate recommending that the response EFA submitted to the President of the Senate under Prvilege Resolution 5 be incorporated in Hansard. The Senate agreed to the recommendation and EFA's response was therefore incorporated in Senate Hansard of 18 September 2003.

More detailed information about the amenmdments is provided below.

Contents:

Introduction

In June 2002, the Federal Government introduced proposed amendments to the Freedom of Information Act 1982 ("FOI Act") designed to further prevent public scrutiny (and potential criticism) of the operation and administration of the Internet censorship regime.

The amendments are contained in Schedule 2 of the Communications Legislation Amendment Bill (No. 1) 2002.

The amendments give a blanket exemption from disclosing information under FOI to the Australian Broadcasting Authority ("ABA"), the Office of Film and Literature Classification ("OFLC") and the Classification Boards.

Exemptions in the pre-existing FOI Act already authorised those and other government agencies to refuse to grant access to information held by them on a case by case basis. The ABA has previously used then existing exemptions to black out URLs of prohibited online content prior to releasing documents and that decision was upheld by the Administrative Appeals Tribunal ("AAT") in a ruling handed down on 12 June 2002.

Two weeks later on 27 June 2002, Senator Richard Alston's representative, Peter McGauran MP, introduced amendments to the FOI Act into the House of Representatives to exempt a broad range of information that does not include identifying information about, or copies of, prohibited content. Documents that were previously released to EFA with some information (e.g. URLs) blacked out would become exempt in their entirety.

It should be noted that the changes have nothing whatsoever to do with preventing access to online content, or any other documents, depicting child sexual abuse. Since EFA sent an FOI application to the ABA in early 2000, the ABA has consistently claimed or implied that EFA was seeking access to material involving child pornography. This claim is not factual. Further, such information was already exempt from disclosure and the Government's changes to FOI law exempt a broad range of entirely different information.

The government has not provided any legitimate reason for winding back citizens' rights to access information concerning the operations of the ABA and OFLC, nor any indication, let alone evidence, that FOI law has been or can be mis-used.

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Status of the Bill

The Bill has been passed by both Houses of Parliament:

8 & 9 September 2003: The Communications Legislation Amendment Bill (No. 1) 2002 was debated in the Senate and passed on the vote of the Coalition Government (Liberal & National Party) Senators and the four independent Senators: Senators Brian Harradine, Len Harris, Meg Lees and Shane Murphy. The ALP, Democrats and Greens Senators sensibly voted against the amendments. For more detail see section Parliament debate on the FOI amendments later herein.

27 March 2003: The Communications Legislation Amendment Bill (No. 1) 2002 was debated in the House of Representatives and passed without the support of the ALP for the section containing amendments to the FOI Act. For more detail see section Parliament debate on the FOI amendments later herein.

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The Bill

The amendments to FOI law are contained in Schedule 2 of the Communications Legislation Amendment Bill (No. 1) 2002:

Overview of proposed amendments to the FOI Act

[Note: This section was written before the Bill was passed by the Parliament. Use of future tense below, and references to "proposed amendments", should be read as referring to the amendments as passed.]

The provisions of Schedule 2 of the Bill will exempt a vast range of information about classification of online content from disclosure under FOI. This includes information that is not currently exempt and that does not comprise copies of prohibited content, nor contain identifying information about prohibited content.

The proposed changes provide a blanket exemption from operation of the FOI Act to four government agencies "in relation to exempt Internet-content documents concerning the performance of a function, or the exercise of a power, under Schedule 5 to the Broadcasting Services Act 1992". The four agencies to be exempt are:

  • Australian Broadcasting Authority
  • Classification Board
  • Classification Review Board
  • Office of Film and Literature Classification

Note: The vast majority of government agencies that are currently exempt from operation of FOI law in relation to particular types of documents are exempt only in relation to documents disclosing details of commercial activities (i.e. documents that may be of benefit to commercial competitors).

In the Bill, "exempt Internet-content document" means:

"(a) a document containing information (within the meaning of Schedule 5 to the Broadcasting Services Act 1992) that:
   (i)  has been copied from the Internet; and
   (ii) was offensive Internet content when it was accessible
        on the Internet; or
(b) a document that sets out how to access, or that is likely to facilitate access to, offensive Internet content (for example: by setting out the name of an Internet site, an IP address, a URL, a password, or the name of a newsgroup)."

and "offensive Internet content" means:

"Internet content (within the meaning of Schedule 5 to the Broadcasting Services Act 1992) that is:
(a) prohibited content (within the meaning of that Schedule); or
(b) potential prohibited content (within the meaning of that Schedule)."

In other words, "offensive Internet content" means Internet content that is or would be classified R18, X18 or RC. It should be noted that under existing classification laws R18 material is material classified unsuitable for minors because it requires an adult perspective. R18 material is screened in cinemas and also available on video to adults. It is not clear why the Coalition government defines material classified unsuitable for minors as "offensive" in the Bill.

In addition, the phrasing of Part (b) of the "exempt Internet-content document" definition enables exemption of some documents concerning material classified G, PG, M and MA15 (i.e. not prohibited online) as discussed later herein.

The effects of the proposed amendments and the government's claimed reasons for same are discussed in the following sections.

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Government's claimed reasons for FOI amendments

[Note: This section was written before the Bill was passed by the Parliament. Use of future tense below, and references to "proposed amendments", should be read as referring to the amendments as passed.]

According to the Explanatory Memorandum to the Bill:

"...The amendments will have the effect of exempting...documents that are likely to contain either offensive content which is the subject of a complaint to the ABA or information which would enable, or would be likely to enable, a person to gain access to that offensive content on the Internet. If the ABA were obliged to disclose such information under the FOI Act, its statutory function of regulating on-line content would be largely frustrated."

Notably the government states "If the ABA were obliged to disclose such information", not that the ABA is obliged to disclose such information under the existing FOI Act. In fact, the ABA is not obliged to release such information and their decision not to do so was upheld by the AAT in June 2002.

Part (a) of the proposed "exempt Internet-content document" definition exempts disclosure of a copy of prohibited Internet content (e.g. a copy of a web page or newsgroup posting). URLs to prohibited content are already exempt under the existing law and it seems clear the same exemption applies to actual copies of prohibited content.

If the government seriously believes it is necessary to change the FOI Act to prevent disclosure of copies of prohibited Internet content, then it is surprising that it took the government over two years to table a Bill containing such changes and a further nine months to bring the Bill up for debate in the House.

In the three years since the Internet censorship regime commenced, the ABA has received only one FOI application concerning classification of Internet content, lodged by EFA in February 2000. In May 2000, the ABA queried whether EFA's application sought access to copies of prohibited content. EFA advised it did not. Hence, if the ABA believed they could be obliged to disclose actual copies, the alleged problem has been known to them since at least May 2000. The fact that the government did not act to amend the FOI law over two and half years ago suggests that the government is aware that the ABA is not obliged to disclose such information. Furthermore, if the amendment is necessary to prevent disclosure then apparently a banned printed magazine in the possession of the OFLC would also be obtainable under FOI and the government apparently sees no need to exempt same from disclosure under FOI.

Part (a) of the definition appears principally designed to distract attention from the new exemptions that would be enabled by Part (b).

Part (b) of the proposed "exempt Internet-content document" definition exempts a broad range of information from disclosure that does not involve copies of prohibited content, nor contain identifying information about prohibited content. The proposed changes achieve this by exempting entire documents, instead of only the small portion of a document identifying prohibited content as is already exempt from disclosure. For further information in this regard, see section titled: Documents to be exempt.

The Explanatory Memorandum offers no reason, let alone justification, for the proposed new and broad exemptions, nor did Coalition government speakers during the debate on the the Bill in the House of Representatives on 27 March 2003.

The Explanatory Memorandum to the Bill also states:

"The amendments will also exempt the Classification Board, the Classification Review Board and the Office of Film and Literature Classification from the operation of the FOI Act in relation to the documents described above because these agencies may also hold such documents which could be the subject of an FOI request."

Notably the above states the OFLC "may also hold such documents". However, apparently the OFLC does not, yet, hold documents containing the name or URLs of prohibited content. In February 2003 (seven months after the Bill was introduced into Parliament) Mr Des Clark, Director of the OFLC, informed a Senate Estimates Committee as follows:

"Senator LUDWIG [ALP]-In answering that particular FOI request, did you release the URLs or names of any Internet sites that have been classified MA, R, X or refused classification?
Mr Clark-We are not given the URLs for those; we are given a number generated by the ABA. ...
Senator LUDWIG-So, what are you given?
Mr Clark-We are given a randomly generated reference number for the material which is submitted for classification."

See, for example, page 1 of a OFLC Classification Board report released under FOI by the OFLC to EFA which contains an ABA reference number in the field "Title" which, in the case of a movie, would contain the name of the movie.

If the amendments to FOI law are enacted, the OFLC "may" hold identifying information thereafter. This would be a convenient means by which the OFLC could avoid existing obligations to process FOI requests from members of the public which apparently the OFLC finds problematic. In a letter dated 27 November 2000 to EFA, responding to EFA's inquiry regarding why classification decisions about online content were not available in the OFLC's online database, Mr Clark said:

"I would add that the OFLC is a small statutory authority with limited resources, required under the Act to deal with complex issues and business. If our resources are diverted to dealing with extensive requests for information, whether or not made under the Freedom of Information Act, we are less able to undertake the development work I would like to see happen. In particular, I am seeking to further develop our website to increase the information made publicly available about our decision-making processes. Over time, I expect that the majority of information requests will be able to be met by reference to the Internet resources."

At that time, EFA had not sent an FOI application to the OFLC for information about classification of Internet content, and did not do so until 17 months later, on 27 February 2002, at which time relevant information was still not available on the OFLC's web site. This application was finalised in May 2002.

Two months later, the government introduced amendments to the FOI Act granting a blanket exemption to the OFLC that covers information that does not identify prohibited content.

In summary, information identifying prohibited content is already exempt from disclosure under FOI. The proposed amendments exempt entire documents that do not include information identifying prohibited content and the government has provided no reason whatsoever for these new exemptions.

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Parliament Debate on the FOI Amendments

House of Representatives, 27 March 2003

During the debate on the Bill in the House of Representatives on 27 March 2003, Coalition government members were evidently unable to demonstrate any need for the changes to FOI law. They principally discussed the need to protect children and the claimed merits of the government's Internet censorship regime, which has nothing to do with citizens' rights to access information about administration of the law by government agencies. Some also claimed that the amendments are necessary to prevent access to child pornography.

According to Paul Neville MP (National Party, Hinkler):

"The current legislation allows for media promoting child pornography and paedophilia to be removed from the Internet. Without this amendment, any individual can, under the Freedom of Information Act, access that material."

and according to Cameron Thompson MP (Blair, Liberal Party):

"Clearly, there are opportunities with the Web for the prevalence of this type of material. If people are determined to get access to it and they seek to use all kinds of devices to do it, the opportunity to use FOI incorrectly to get access to, for example, child pornography, is something that we need to address."

It is patently ridiculous to suggest that people would apply to government censorship agencies under FOI law for copies of material containing child pornography. Child pornography is illegal to possess in all Australian States and Territories. Moreover, it is a criminal offence involving a maximum penalty of 5 years imprisonment under Section 578C of the NSW Crimes Act to "distribute, disseminate, circulate, deliver", etc. child pornography. It seems extremely improbable that any member of the ABA or OFLC (whose offices are in NSW) would infringe the NSW Crimes Act. If there is the slightest risk that the ABA and OFLC are exempt from compliance with criminal law in relation to dissemination of child pornography (other than provision to law enforcement agencies) then relevant criminal law should be amended accordingly. Amending FOI law to exempt a vast range of entirely different information is an inappropriate means of dealing with a deficiency, if any, in criminal law.

The only other reason for changes to FOI law offered by Coalition speakers was the claim that children and adults can currently obtain access to content classified R18, X18 or RC by use of FOI law.

According to Bruce Scott MP (National Party, Maranoa):

"Section 11 of the Freedom of Information Act says:
'... every person has a legally enforceable right to obtain access ... to (a) a document of an agency ...'
This means that, even if you are 18 years or younger, from as little as $30, you are able to apply for your chosen electronic material, available from the Internet - available on your computer at the touch of a button."

The above misrepresents the provisions of the existing FOI Act. Section 11 in fact states:

"(1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to: (a) a document of an agency, other than an exempt document; ..."

Government agencies already use exising exemptions in the FOI Act to refuse to disclose information that identifies prohibited content on the Internet. The Administrative Appeals Tribunal upheld the ABA's decision to refuse to disclose such information to EFA in a ruling handed down on 12 June 2002.

Unlike most Coalition members, ALP members addressed the facts concerning the proposed FOI changes. For example Mr Lindsay Tanner, Shadow Minister for Communications (ALP) said:

"... The effect of schedule 2 of this bill would be to prevent any public scrutiny, through the Freedom of Information Act, of the various agencies’ roles in censoring the Internet; in other words, the decisions made by the agencies with respect to censorship of particular Internet sites would no longer be subject to the Freedom of Information Act as virtually all government or decisions by government agencies are currently subject.

... Schedule 2 is plainly a response to an FOI request made of the ABA by an organisation called Electronic Frontiers Australia, which is concerned about the lack of transparency in online classification decisions.

In June, the Administrative Appeals Tribunal up-held the ABA’s decision not to provide the documents sought, on the grounds that disclosure could reasonably be expected to ‘have a substantial adverse impact on the proper and efficient conduct of the operations of the agency’, which is within the meaning of section 40(i)(d) of the FOI Act, and that this outweighed the public interest in disclosing information. Regardless of what one thinks about this particular decision, the independent review tribunal has made its decision on the merits of the application that it had before it. The most important aspect of the case was that the tribunal reached its decision after balancing the potential of disclosure to prejudice the operation of the ABA against the public interest in disclosure.

Labor believes that it is more appropriate to require these agencies and the tribunal to undertake this balancing exercise rather than to grant a blanket exemption from the operation of the FOI Act. It is not unreasonable to require these agencies to justify their decision to provide information about their Internet censorship decisions. There is no evidence whatsoever that people are using FOI requests to the OFLC or the ABA as a means of procuring the addresses of offensive or illegal Internet sites for public dissemination or misuse, which is the government’s ostensible reason for placing these amendments in this piece of legislation.
...
The government has made no attempt to justify by evidence or argument that schedule 2 is necessary. Labor believes that it is not justified. I will be moving a second reading amendment condemning the government for its failed Internet content regulation regime and the attack on the freedom of information legislation that the provisions in schedule 2 contain. In the Senate, Labor will be seeking the support of the minor parties and Independents to remove this part of the bill. Labor will not permit the government to fundamentally undermine the freedom of information regime in this country, which is so fundamental to ensuring that we have genuine public scrutiny and accountability with respect to government agencies."

Senate, 8 & 9 September 2003

The debate in the Senate was substantially similar in content to that in the House of Representatives.

During the Senate debate on 9 September 2003, Senator Brian Harradine and Senator Richard Alston made a number of non-factual statements and allegations about EFA. EFA wrote to the President of the Senate seeking a right of reply in accord with Senate Privileges Resolution 5. On 18 September 2003, the Chair of the Senate Committee of Privileges (Senator Robert Ray) presented a report to the Senate recommending that the response EFA submitted to the President of the Senate under Prvilege Resolution 5 be incorporated in Hansard. The Senate agreed to the recommendation and EFA's response was therefore incorporated in Senate Hansard of 18 September 2003.

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Documents to be exempt

[Note: This section was written before the Bill was passed by the Parliament. Use of future tense below, and references to "proposed amendments", should be read as referring to the amendments as passed.]

Types

Examples of government proposed "exempt Internet-content documents" include:

  • Entire documents that include the title/name of a web page, web site, newsgroup name, newsgroup posting subject line, etc. (or the URL of same) that is or would be classified R18, X or RC. Such documents are currently obtainable under FOI, but only after the URL and/or title/name of the content has been blacked out. (Similar information about classification of movies, publications and computer games, including titles of the material, will continue to be made freely publicly available by the OFLC in their online database).
  • Entire documents stating that an item of Internet content is not prohibited online (e.g. that a web page has been classified PG12, M15, or MA15) if in the ABA or OFLC's opinion such a document contains information that "is likely to facilitate access to, offensive Internet content". For example:
    • A Classification Board report setting out the Board's reasons for classifying a web page MA15 (i.e. not prohibited online) will be exempt from disclosure, if the non-prohibited page contains the name of or a link to another web page that is or "would be" prohibited. The ABA has previously denied access to names and URLs of Web pages classified MA15 on this basis on the grounds that if a person accessed the non-prohibited MA15 page they would allegedly find, on that non-prohibited page, a URL or title of a page that is or would be prohibited. However, the proposed changes to FOI law go further. They will exempt all information about classification of the MA15 page from disclosure. Documents containing reasons for classification decisions, with the name and URL of the non-prohibited MA15 page blacked out, as have previously been released, will become fully exempt.
    • A Classification Board report setting out the Board's reasons for classifying a web page PG (i.e. not prohibited online), if the PG page on the Internet contains the name of, or a link to, another web page that is or "would be" classified M15, and the latter links to a page that is or "would be" classified MA15, and the latter links to a page that is or "would be" classified R18. This scenario, while ludicrous in terms of grounds for exempting documents from disclosure under FOI, is entirely consistent with ABA grounds for refusing to disclose information about non-prohibited content to date, and with the AAT decision in relation to same, and with the wording of the proposed changes to FOI law.
  • Any document that the ABA or OFLC wishes to be exempt. The proposed amendments are phrased in a manner that would enable the ABA and OFLC to write the name of a 'prohibited' web page on any document, and then the entire document would be exempt from disclosure under FOI.

In effect, the ABA and the OFLC would be able to claim that any document sought under FOI law "is likely to facilitate access to offensive Internet content" and so the document is exempt from disclosure. This type of legislation would enable the ABA and OFLC to blatantly lie in this regard. The total secrecy surrounding operation of the regime would make the prospect of the ABA, OFLC, or Minister being found to have misled or outright lied to the public extremely unlikely.

Samples

Samples of the type of documents that have previously been obtained by EFA under FOI from the ABA or the OFLC are provided below. EFA has never been provided with the URLs or titles of prohibited content. This information has been blacked out, as authorised by existing exemptions in the FOI Act, prior to release of documents under FOI. Under the proposed changes to FOI law such documents would be entirely exempt from disclosure, that is, the information that was not blacked out previously would also be exempt.

  • OFLC Classification Certificates, see sample (GIF image). Note: This certificate concerns Internet content classified MA15 (i.e. not prohibited). The ABA blacked out the title of the MA15 content on the grounds that it would facilitate access to prohibited content.
  • ABA Complaints Management System Records, see sample (GIF image).
  • ABA Take-down Notices issued to ISPs, see sample (GIF image).
  • ABA notifications to filter suppliers, see sample (GIF image).
  • Classification Board Decision Reports, see sample Page 1, Page 2, Page 3 (GIF images).

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Possible/probable reasons for new broad exemptions

This section discusses the type of information previously released under FOI and possible reasons why the government and/or agencies wish to exempt this information from disclosure.

Preventing effective appeal concerning classification decisions

It is claimed that an Internet content provider can appeal a classification decision of the OFLC that results in the ABA issuing a take-down notice. However, the Broadcasting Services Act does not require either the OFLC or ABA to make a copy of the Classification Board's Report, setting out the reasons for their classification decision, available to the content provider/publisher, nor to the Internet Service Provider/Internet Content Host who receives the take-down notice. Plainly, it would be difficult to effectively appeal a classification decision without knowing the reasons for the classification.

At the present time, it appears the only possible legal right an Internet content provider has to obtain a copy of the Classification Board Report is under FOI law. However, the proposed changes to FOI law would remove such a right in instances where the Classification Board Report contains the name or URL of the content classified. Hence the proposed FOI exemptions could readily be used to prevent a content provider who wishes to appeal a decision from obtaining a copy of the reasons for a classification decision.

Preventing public scrutiny of the Internet censorship regime

Information that would become exempt is information that can be and has been used to scrutinise the administration, operation and effectiveness of the Internet censorship regime. This is information that does not identify prohibited content (such information is already exempt) as discussed below.

  • ABA Complaints Management System Record
    See sample document (GIF image) received under FOI from ABA.

    Information currently not exempt includes ABA complaint number, brief description of content, reason for complaint, date of complaint, whether or not complaint lodged by Australian resident.

    • When an FOI application is lodged covering complaints received by the ABA in a particular period, the dates on these documents can be used to identify any discrepancies between the number of complaints received according to the ABA's Complaints Management System Records and the number reported in the Minister/ABA's six-month reports on operation of the regime tabled in the Senate.

      For an example of such discrepancies see relevant section of EFA's report on documents released by ABA in 2000. Note: That analysis indicates the Minister's report to the Senate regarding the first quarter 2000 understated the number of complaints.

      More recently, the last two six-month reports to the Senate (as at 17 July 2002) have overstated the number of prohibited items found on Australian-hosted sites and the latest report overstated the number of items depicting child sexual abuse referred to State/Territory police, according to Senator Alston's answers to Questions on Notice in the Senate. (EFA is presently preparing a report on this matter).

      An FOI on the ABA could ascertain whether the official report or the Minister's answers contained the correct numbers or, quite probably, show other different numbers. However, if proposed changes to FOI law are passed, it will no longer be possible to obtain relevant documents.

    • Details of whether complaints were lodged by Australian or non-Australian residents can be used to show that the number of "complaints" received and reported to the Senate include "complaints" from non-Australian residents, although the legislation provides that only Australian residents are entitled to lodge complaints. Counting and reporting non-valid complaints can be used to imply a larger number of Australians lodge complaints than is factual. EFA believes "complaints" from overseas hotline organisations have been counted for this purpose. This matter is discussed in the "Complaints System" section of EFA's November 2002 submission to the Government review of the Internet censorship regime.

    • EFA has no idea why the government seeks to exempt the brief description of content and reason for complaint. The former, at the very least, is most certainly information that Senator Alston said would not be censored in the Senate on 25 May 1999.

  • OFLC Classification Certificates
    See sample document (GIF image) received under FOI from ABA.

    • OFLC certificates can be cross-referenced to ABA Complaint Management System Records (above) by way of the ABA complaint number that appears on both documents. This enables one to know how many and which complaints resulted in a finding of prohibited content and the classification given to the content.

      The resulting numbers could/can be used to show discrepancies between the six-month reports tabled in the Senate and the ABA/OFLC records. For example, the most recent report for the six-months ended June 2001 (that was the latest report as at 17 July 2002, although the Minister is supposed to report to the Senate at six monthly intervals) claims 23 items of 'Australian hosted' content were classified RC, while the Minister's answers to Questions on Notice ("QONs") show that only 17 were classified RC. Moreover the six-month report claims that 23 items involved child sexual abuse material, while the Minister's answers to QONs show that only 13 did. It appears the six-month reports contain inaccurate information showing the vast majority of material being found prohibited on Australian sites involves child abuse material, although this is not factual, at least not in the 6 months ended June 2001 according to the Minister's answers to QONs.

      An FOI on the ABA (for ABA Complaint System Records and OFLC Certificates) could ascertain whether the official report or the Minister's answers contained the correct numbers or, quite probably, show other different numbers. However, if proposed changes to FOI law are passed, it will no longer be possible to obtain relevant documents.


  • ABA Take-down Notices issued to ISPs
    See sample document (GIF image) received under FOI from ABA.

    • These documents show dates, classifications and brief descriptions similar to that contained in documents listed above (and can be cross-referenced to other documents) so reasons for exempting them entirely are presumably similar to above.
    • In addition, these documents show that when the ABA finds prohibited content in a newsgroup (which is deemed Australian although the content is equally if not more likely posted to the newsgroups by persons overseas), the ABA only sends a take-down notice to one ISP, and so the content remains available on news servers of numerous other Australian ISPs. Nevertheless these items, which account for approx. 50% of "Australian-hosted prohibited content" in the year ended June 2001 are counted and reported as having been "taken-down" from Australian sites, in effect claiming that double the amount of "Australian hosted" content is no longer accessible on Australian servers than is factual.

  • ABA notifications to filter suppliers
    See sample document (GIF image) received under FOI from ABA.

    • It has been claimed that the ABA no longer bothers to notify filter makers of prohibited material. EFA does not know whether such rumours/claims are true and has not to date had the time to try to find out more about these allegations and whether or not they could be factual. However if, and we emphasise if, they are factual, obviously the ABA would not wish to have to process an FOI asking for documents which should, but do not, exist.

  • Classification Board Report Page 1
    See sample Page 1 (GIF image) received under FOI from OFLC.

    Some of these documents contain web page titles in the "Synopsis" at the end of the page and some do not (based on pages released to EFA under FOI to date). If the page contains a web page title or a newsgroup name (or other identifying info) in the Synopsis that "is likely to facilitate access to, offensive Internet content" the entire page would be exempt under proposed changes to FOI law. It can be assumed that, if changes to FOI are enacted, all such pages will contain identifying information in future, in order to make the documents exempt.

    Probable reasons for exempting these documents are similar to those discussed above relative to dates, classification given, cross referencing of complaint numbers, etc.

  • Classification Board Report Page 2
    See sample Page 2 (GIF image) received under FOI from OFLC.
    See also, extracts from other pages released available at:
    http://www.efa.org.au/FOI/oflc2002/inforeleased.html

    These pages contain a brief description of the Internet content classified and the Classification Board's reasons for giving the content a particular classification. They contain the same type of information as the reports of the Classification Board and Classification Review Board on classification decisions of movies, publications and computer games.

    Probable/possible reasons why government seeks to exempt entire document:


  • Classification Board Report Page 3
    See sample Page 3     (GIF image) received under FOI from OFLC.

    The OFLC claims most of the information on these pages is already exempt on the age-old "candid and frank" grounds, i.e. it is alleged that if the names of Board members who classify online content were to be publicly disclosed, they would no longer be able to be candid and frank. This claim is quite remarkable given the Classification Review Board reports (re offline material such as movies) list the names of the members who made the decision and those reports are made publicly available on the OFLC web site.

    Probable/possible reasons why government seeks to exempt entire document:

    • The amount of blacked out information on the page indicates how many Board members classified an item of Internet content. It shows that only 1 or sometimes 2 members classify items of Internet content, although a minimum of 3 classify a movie. The OFLC charges the ABA the same amount ($510) for classifying a web page, single image or newsgroup posting, as for classifying a movie of 15 minutes running time, even though less Board members spend time classifying Internet content than movies (and the cost of classifying an entire offline magazine is $130). Exempting the entire page would prevent it being obvious that the ABA (hence taxpayers) are being charged unduly high fees, given a smaller number of Board member's classify Internet content than movies.

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Comparison of availability of classification decisions: offline -vs- online material

During the AAT hearing on 19 July 2001, Deputy President S. Forgie remarked:

"...I keep thinking of 1984 but I couldn't get the book out because it's been packed somewhere on the road to Melbourne. But it sort of makes me think that are people going to be - in relation to film and video you know what you're not allowed to see if you're sitting here in Australia, and you know what you're not allowed to import, and with the internet, are you left in a situation where you don't know what you're not allowed to see - so therefore there is a danger that - and this is a public interest in that one should perhaps know what one is not allowed to see as opposed to not knowing what one is not allowed to see."

For many years the censorship/classification scheme for off-line media has operated with full public disclosure of details about classifications decisions. As Federal Attorney General, Daryl Williams, remarked during a speech in May 2001:

"As soon as a classification decision is made it is in the public domain and it is immediately open to question and scrutiny by the community. ... we need to have an independent and transparent decision making process."

However, the Attorney General's statement is misleading.

Although the OFLC's classification decisions concerning movies, publications and computer games have long been made readily and freely available to the public, their decisions concerning online content have not. A very small amount of information about online content classification decisions has been obtainable, but only via costly FOI applications, and even this minimal information will become exempt from disclosure if proposed changes to FOI law are enacted.

The government claims classification decisions concerning online content must be secret because disclosure might "enable a person to gain access to that offensive content on the Internet". In contrast, when a movie is banned the government makes a public announcement. For example, in May 2002, the government announced the film Baise-Moi had been banned, and thousands of people subsequently viewed the banned film at the cinema. Many more have possibly ordered a copy on video or DVD from overseas. Although it is illegal to import material that is "Refused Classification" and delivery may be stopped by Customs, as AAT Deputy President Forgie remarked during a hearing on 19 July 2001: "I'm sure people have thought of ways around that which will work some of the time."

More detail regarding the availability of information about classification of offline material, compared with online material, is provided below.

OFLC Classification Database

Classification decisions in relation to movies, videos, magazines, books and computer games are made freely, publicly available in the OFLC's classification database on the Internet. (Note: As at 15 July 2002, the OFLC site warns "Some searches of this database may result in the retrieval of publications, films and/or computer games which are offensive and unsuitable for children. Parental supervision of children using this service is recommended.")

The OFLC database search facility enables members of the public to look up the classification of a particular movie, or to display a list of movies that are banned, or are classified R18, and similarly for publications and computer games. For example, the database will display a listing of titles of banned books, including some that are available for download from overseas Web sites.

The database does not, however, contain any information about classification decisions made under the Internet censorship regime despite the OFLC Director's written assurance to EFA almost two years ago that some information would be made available in the database. In addition, the ABA claimed, under cross examination in the Administrative Appeals Tribunal ("AAT") in July 2001, that the OFLC and ABA had agreed on "protocols" for making such information available. Apparently, however, the OFLC cannot readily locate and provide details of any such agreed "protocols" when asked for same under FOI. Further detail in this regard is provided below.

Mysterious "protocols" between OFLC and ABA

On 12 September 2000, EFA wrote to the Director of the OFLC inquiring why classification decisions made by the OFLC for the ABA about online content were not available in the OFLC’s classification database. The Director, Mr Des Clark, replied in a letter dated 27 September 2000 stating:

"...OFLC is currently negotiating a series of protocols with the ABA. When these are in place, I am sure that EFA will be satisfied with the information available online.
In the meantime, OFLC refers questions about the classification of online content to the ABA as I did at the Censorship forum at the Dendy Cinema where I also confirmed the commitment of the OFLC to transparency in its decision making and operating procedures..."

The ABA said, under cross-examination in the Administrative Appeals Tribunal ("AAT") on 18 July 2001, that such "protocols" had been agreed between the ABA and OFLC. The AAT's decision, issued on 12 June 2002, suggests the AAT accepted the ABA's assurances given eleven months previously. A relevant section from the transcript of the AAT hearing is as follows:

"[Ms Graham-EFA to Mr Fraser-ABA:] Are you able to advise whether the ABA and the OFLC are still negotiating protocols regarding putting classification decisions on line?
[Mr Fraser-ABA:] We have had discussions with the OFLC about the sort of information that is kept in their publicly accessible data base, and we have agreed on a format for information which would not - which doesn't contain information that is likely to lead a person to prohibited content.
[...]
[Ms Graham:] What is a format, sorry?
[Mr Fraser:] Well, agreed on the terms that the OFLC will use in its data base to list the information.
[Ms Graham:] Is this going to list it in any way that would identify what kind of page it was; what the topic of the page was; what the subject matter of the page was?
[Mr Fraser:] I understand that for each item you will see a complaint reference number, a classification and a very short description of the type of content concerned and possibly a date on which it was classified."

Apparently, however, the OFLC cannot readily locate and provide details of any such agreed "protocols" when asked for same under FOI. In May 2002, EFA sent an FOI application to the OFLC requesting, among other things:

"4) Copies of document/s detailing the protocols agreed between the OFLC and the ABA concerning online provision (e.g. in the OFLC online classification database) of OFLC classification decisions made under the Online Services Act/BSA, as referred to in the OFLC Director's letter to EFA of 27 September 2000."

The OFLC advised that processing that item of the FOI application would involve 19 hours decision making time and therefore cost $400. EFA considered that if a document "detailing the protocols agreed between the OFLC and the ABA" existed, it would not, or should not, take 19 hours to find it and decide whether or not it was exempt from disclosure under FOI. In view of the cost of $400 for a possibly non-existent document, EFA withdrew the request for same.

Information about classification decisions of Internet content is still not available in the OFLC's online database. It seems clear that either:

  • the ABA's statements in the AAT were not factual, or
  • the OFLC has decided not to make information available online and seeks to avoid disclosing documents showing that protocols were previously agreed with the ABA by use of high fees for access to documents under FOI, or
  • the OFLC record keeping and retrieval processes need overhaul to enable OFLC staff to readily locate documents concerning policies/procedures.

Classification Review Board Decision Reports

The Classification Review Board's classification decision reports (re offline material) have been made publicly available on the OFLC web site since late 2001. For many years previously these were published in the OFLC Annual Reports. EFA was advised by the OFLC Policy Manager in approx. October 2001 that the decision to commence providing these reports on the OFLC web site, instead of in Annual Reports, was made in part to reduce the printing costs of the OFLC Annual Reports.

The Review Board's decision reports are listed on and downloadable from the following page:
http://www.oflc.gov.au/content.html?n=121&p=66
For example, the Review Board's report on its decision and reasons for banning the film Baise-Moi is available online at:
http://www.oflc.gov.au/resource.html?resource=92&filename=92.pdf.

The government's proposed changes to FOI law would exempt Review Board reports on reasons for classifying online content R18, X or RC (and some content classified G, PG, M and MA15) from disclosure under FOI, when the report contains information that may enable identification of the classified content and so may be "likely to facilitate access to offensive Internet content". However, reports on reasons for classification of offline material would continue to be made readily publicly available and would continue to include the title of the material.

Classification Board Decision Reports

In recent years, some Classification Board decision reports have been made publicly available by the OFLC in their reports on the Community Assessment Panels. For example, the Board's report on reasons for giving a classification of 'R18' to the movie One Eight Seven was published.

Historically, the Board's decision reports have not been published in the OFLC Annual Reports, possibly due to publishing costs as the Board classifies vastly more material than the Review Board. However, in approx. October 2001, the OFLC Policy Manager advised EFA that the OFLC was considering making some Classification Board reports available on the OFLC web site after a then proposed redesign of the OFLC web site.

The Classification Board's reports are obtainable under FOI. For example, the report setting out the Board's reasons for banning the film Romance (in 2000) was released to EFA under FOI. The reports of the individual Board members who classified the film resulting in the majority decision to ban it were also released to EFA. Further, in May 2002, EFA also obtained Classification Board reports on classification of some online content under FOI.

The government's proposed changes to FOI law would exempt Board reports on reasons for classifying online content R18, X or RC (and some content classified G, PG, M and MA15) from disclosure under FOI, when the report contains information that may enable identification of the classified content and so may be "likely to facilitate access to offensive Internet content". However, reports on reasons for classification of offline material would continue to be obtainable under FOI and would continue to include the title of the material.

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The AAT Decision in the FOI case EFA and ABA

The decision of the Administrative Appeals Tribunal ("AAT") in the Freedom of Information ("FOI") case, Electronic Frontiers Australia Incorporated and Australian Broadcasting Authority (Q2000/979), was handed down by Deputy President S.A. Forgie on 12 June 2002.

EFA had appealed the decision of the ABA to black out titles (e.g. names of web pages) and URLs of Internet content that had been the subject of a complaint to the ABA. Denied information included information about content classified MA15+, R18, X and RC. As the ABA had consistently (incorrectly) implied EFA wanted identifying information about content involving child sexual abuse, EFA informed the AAT, during the hearing and in the presence of the ABA, that:

"We consider that the ABA should be required to point out clearly which documents, that they are seeking to deny access to, actually involve child pornography. ... Those documents should be specifically exempted and then we can deal with the matter of the information that EFA is really seeking access to which is not information that is illegal to possess. ..."

The AAT ruled that the documents requested by EFA were exempt from disclosure "in so far as they reveal URLs and IPs" on the ground that "revelation of the URLs and IPs to the public ... would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of [the ABA's] operations" and that the public interest in disclosure (s.40(2)) was outweighed by the adverse effect on the ABA's operations they considered would result from disclosure.

In essence, the AAT concluded that if the veil of secrecy over the ABA's censorship decisions was removed, the ABA would receive substantially less complaints about Internet content from the public and overseas hotlines and therefore the ABA's ability to undertake its functions would be "substantially hampered". In that regard, the AAT said:

"90. On the basis of the evidence of Ms Wright and Mr James (sic) [Mr Richard James Fraser], we are satisfied that it is reasonable to expect that, should the IPs and URLs of Internet content that is potentially prohibited content or prohibited content be revealed to the public, the number of complaints will be substantially reduced. That would follow from the perception, rightly or wrongly, that the list of IPs and URLs would encourage certain people to seek access to the Internet content complained about. We are satisfied that there is a reasonable likelihood that, once known, it is reasonably likely that such access could be gained even if a take-down notice has been issued to the Internet content host as it is reasonably likely that the Internet content could be moved to an overseas site.
...
95. ... Among [the objects of the BSA] is an important object of protecting children from exposure to Internet content that is regarded as unsuitable for them. It appears on its face that it may be an imperfect scheme but perhaps that is to be expected given the practical difficulties in regulating a medium that is more nebulous than film or print and in the context of very difficult social and technological issues. For all that, it is the scheme that Parliament has chosen and it is the only statute based scheme in existence at the moment. To undermine its effectiveness, as we consider is reasonably likely to happen were we to release the requested URLs and IPs, would be not only to take away its foundation but also to take away the effectiveness of steps taken voluntarily by parents to make use of an Approved Filter. That would follow from the ABA's reduced effectiveness in identifying content of which the filter software manufacturers are advised."

The AAT remarked:

"96. We have found the issues in this case to be of some difficulty. We have no reason to think that Electronic Frontiers seeks the information for anything other than the most honourable reasons. ... The difficulty that we have is that a person’s right of access is not affected by his or her reasons for seeking it (FOI Act, s. 11(2)(a)). Access granted under the FOI Act must be considered as access to the world at large and the fact that Electronic Frontiers seeks it for a legitimate and indeed worthy purpose does not give it any greater right than a person who may seek it for reasons that are not legitimate and worthy."

The AAT made number of general observations that they considered:

"93 ... raise important issues relating to censorship, openness of government and even to the confidence that the public has in the agencies of government to implement and administer its schemes with integrity for secrecy can ultimately lead to the public’s questioning integrity even where there is no need for such questioning. They also raise questions as to the effectiveness of the scheme to carry out the objects identified in s. 3(1)(k), (l) and (m) of the [Broadcasting Services] Act."

Observations made by the AAT included:

"78. The second relates to issues of censorship. Comparisons and contrasts can be drawn between what happens in the classification of film and video and what is said to be the position in relation to Internet content. In relation to the former, it is said, it is possible to know the material that is prohibited from being brought into Australia and so prohibited from being shown in Australia i.e. those films and videos that are colloquially said to be “banned”. Although described as classification, this amounts to censorship of what the Australian public may see and of what it may bring into Australia. The public will have means to know what it is not permitted to see. Should a member of the Australian public wish to see the film or video, then he or she knows what it is and may seek it out overseas and view it overseas according to the laws of that overseas country. Those who do are able to form a view as to the manner in which the material that they may not see is assessed by reference to the standards set out in the Guidelines. They form a view as to whether the standards are being applied too rigorously. If they are thought to have been applied too leniently, that no doubt would be a matter already canvassed in Australia in public debate. That debate would have been conducted on the basis that the film and video material had been classified and so was available to be viewed. If the material were not classified and so not permitted to be viewed in Australia, many people would not, when they were outside Australia, want to take advantage of any opportunity (lawful or otherwise) to see film and video banned in Australia. The fact that an opportunity may assist to view film or video outside Australia could, however, be said to ensure the integrity of the classification system by ensuring that it is never open to abuse and used for purposes other than classification according to the Guidelines.

79. In contrast, if the URLs and IPs are exempt under the FOI Act then this effectively means that the Australian public may not know what it may not see. As a consequence, no member of the public has the opportunity to view the material at any time. That lack of opportunity born of a veil of non-disclosure could bring into question whether take-down notices are issued only in relation to Internet content that is prohibited content or potentially prohibited content and so bring into question the integrity of the scheme under the Act. We should say that we have no reason to question, and do not question, the integrity of the ABA. What we do say is that secrecy may of itself undermine the public’s confidence. This was a matter addressed during the Second Reading debate (Hansard, Senate, 25 May, 1999, page 5271 (Exhibit A)).

80. Our third general comment relates to the scheme that is established under the Act and brings us to the manner in which we have undertaken the review of the ABA’s decision. It seems to us that some of the evidence and particularly that given in cross-examination is directed to the effectiveness of the scheme of regulation of Internet content. Questions were raised, for example, as to how effectively the scheme protects children from gaining access to Internet content when the children’s parents may choose, and lawfully choose, not to install an Approved Filter in order to block content hosted on an overseas site. There were questions as to how effectively it does so when the ABA does not consistently advise filtering software manufacturers of Internet content that it has investigated on overseas sites and that would be rated R if located on an Australian site. There were questions as to how effectively it could do so when it could not require the manufacturers of Approved Filters to upgrade their software to take account of take-down notices issued to Internet content hosts and to ISPs. All that it could do was remove them from the Schedule of Approved Filters. There are also questions as to how effectively any scheme may effectively regulate access to Internet content that may be easily charged and readily moved from one ICH to another."

In concluding remarks, the AAT said:

"97. ...we have concluded that disclosure under the FOI Act would not, on balance, be in the public interest within the meaning of s. 40(2). On this occasion, considerations favouring its disclosure are outweighed by the substantial adverse effect that we consider would result from disclosure. We note that the scheme is to be reviewed before 1 January 2003 and would hope that the review is able to incorporate issues of the type that have faced us in this case."

The AAT decision is available online at:
http://www.efa.org.au/FOI/AAT2000-979_dec.pdf (PDF 145 Kb).

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Background to FOI section of the Bill

25 May 1999: The Communications Minister, Senator Alston, assured the Senate that the Internet censorship regime would not result in a layer of censorship on censorship. In response to Senator Bob Brown’s questions during debate on the Bill, the Minister said:

“[A] legitimate concern is to ensure that a description of the material does not disappear from public view. There could not be any offence taken by being able to access a site that described the material or gave details of any take-down orders or the whole circumstances in which the material had found its way onto the classified lists. So there is no intention to somehow ensure that people are unaware. I am not quite sure why they would have such an interest in being aware of what had been banned. Obviously the stakeholders would have a direct interest and immediate knowledge from the outset. There probably is some legitimate interest in the general community in knowing the description...”

Senator Brown asked Senator Alston to repeat his assurance and Senator Alston said:

“What I said was that I think it is legitimate to have a description of the material so that you can identify it...”.

22 February 2000: EFA lodged an FOI application on the ABA after observing that neither the ABA or OFLC were making information about online content classification decisions available to the public. For more information see EFA's main page about the application, and the frequently asked questions page.

12 September 2000: EFA wrote to the Director of the OFLC inquiring why classification decisions made by the OFLC for the ABA about online content were not available in the OFLC's classification database.

27 September 2000: The OFLC Director, Mr Des Clark, wrote to EFA stating:

“...OFLC is currently negotiating a series of protocols with the ABA. When these are in place, I am sure that EFA will be satisfied with the information available online.
In the meantime, OFLC refers questions about the classification of online content to the ABA as I did at the Censorship forum at the Dendy Cinema where I also confirmed the commitment of the OFLC to transparency in its decision making and operating procedures...”

17 October 2000: EFA lodged an application for review of the ABA's FOI decision in the Administrative Appeals Tribunal ("AAT").

18 July 2001: The ABA said, under cross-examination in the AAT, that "protocols" had been agreed between the ABA and OFLC for making information about classification decisions of online content available in the OFLC online database (as referred to in the OFLC Director's letter of 27 September 2000). See relevant extract from the transcript of the AAT hearing earlier herein.

27 February 2002: Having observed the classification decisions concerning online content were still not available in the OFLC database, EFA sent an FOI application to the OFLC requesting, among other things:

"4) Copies of document/s detailing the protocols agreed between the OFLC and the ABA concerning online provision (e.g. in the OFLC online classification database) of OFLC classification decisions made under the Online Services Act/BSA, as referred to in the OFLC Director's letter to EFA of 27 September 2000."

15 May 2002: The OFLC advised that processing Item 4 (above) of the FOI application would involve 19 hours decision making time and therefore cost $400. EFA considered that if a document "detailing the protocols agreed between the OFLC and the ABA" existed, it would not, or should not, take 19 hours to find it and decide whether or not it was exempt from disclosure under FOI. In view of the cost of $400 for a possibly non-existent document, EFA withdrew the request for same.

12 June 2002: The AAT issued its decision on the appeal lodged by EFA in the AAT eighteen months previously. The AAT ruling upheld the ABA's FOI decision to refuse to disclose either titles or URLs of online content that is classified R18 (e.g. as are the films Boys Don't Cry, Eyes Wide Shut, Romance, Hannibal etc.), or X, or RC (e.g. as is the film Baise-Moi and the computer game Grand Theft Auto 3).

27 June 2002: The Federal Government introduced a Bill into Parliament that goes far beyond exempting titles and URLs of online content as ruled exempt by the AAT. The Bill seeks to exempt a vast range of information that was previously available and released to EFA under FOI.

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Conclusion

[Note: This section was written before the Bill was passed by the Parliament. Use of future tense below, and references to "proposed amendments", should be read as referring to the amendments as passed.]

The ABA's counsel stated in the AAT hearing in July 2001:

"...we are saying the scheme for all its faults, for all its weaknesses, for all its warts, is still a viable scheme. It is one which appears to have the confidence of the industry and all the other stakeholders and therefore anything that substantially affects the way in which this scheme operates, the whole scheme, is not in the public interest."

Regardless of the ABA's opinion about confidence in the scheme (and whether or not such an impression is correct), EFA considers the ABA and OFLC should remain subject to the FOI Act for the same reasons as other equally diligent agencies.

As EFA stated to the AAT:

"We submit that a scheme that has faults, that has weaknesses, that has warts, should operate with increased transparency, openness and oversight, not less."

In EFA's view, the proposed changes to FOI Act should be rejected outright and the Broadcasting Services Act should be amended to require the ABA and OFLC to make freely and publicly available the same amount of information about classification decisions concerning online content as has long been made readily available about classification of movies, publications and computer games.

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