South Australian
Internet Censorship Bill 2002

Last Updated: 29 November 2002


According to the SA Government Gazette, the SA Internet censorship law became effective on 1 December 2002. The Bill was passed by the Legislative Council on 24 October 2002 (see Hansard) and assented to on 7 November 2002. Both the ALP and Liberal Party voted for the Bill, and the Democrats voted against it. The Hon Ian Gilfillan (Democrats) correctly observed, among many other things, that the Bill "has returned to reassure us that not only do the Liberals have little understanding about the internet as a medium but the Labor Party is equally befuddled by information technology and its implications and benefits for our community and our state". Say NO to Net Censorship

The Bill is almost identical to the Bill introduced by the previous SA Government in November 2000, which was not passed by both Houses of Parliament prior to the SA election in February 2002. Among other things, the Bill criminalises making available content unsuitable for children online, even if the content is only made available to adults.

On 6 June 2002, a NSW Parliamentary Committee recommended that the NSW Government not proceed with legislation almost identical to the SA Bill.

Contents:


Recent Updates / Status of Bill:

  • 29 November 2002: EFA has been advised that according to the SA Government Gazette, the law becomes effective on 1 December 2002. (It was assented to 7 November 2002).
  • 24 October 2002: The Bill was passed by the Legislative Council (see Hansard). The Minister indicated the law would become effective without delay. As at the last update of this page, EFA does not know whether the Bill has been assented to nor when it will become effective.
  • 27 August 2002: The Bill was passed by the House of Assembly (see Hansard). It has not yet been passed by the Legislative Council and is on the LC Notice Paper for 14 October 2002, which is the next sitting date.
  • 8 June 2002: The Bill is on the HoA Notice Paper for 8 July 2002, which is the next sitting day.
  • 6 June 2002: The NSW Standing Committee on Social Issues, which had been inquiring into proposed NSW legislation almost identical to the SA Bill, issued a report recommending the relevant provisions of the NSW Act (not yet law) be repealed. EFA recommends concerned persons contact the SA A-AG and their local member of SA Parliament urging them to read the NSW Committee's report and re-consider the proposed SA law in light thereof.
  • 4 June 2002: The Bill was introduced into the SA House of Assembly by the A-G Michael Atkinson and read a first and second time.
  • See also past updates / historical information.

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Overview and Background

Proposed new Internet censorship laws were tabled in the South Australian Parliament on 4 June 2002 by the Attorney-General, Michael Atkinson.

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

Serious criminal justice issues arise, such that the SA Bill would require major amendments to ensure, at the least, that ordinary people in SA 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). The maximum penalty planned is $10,000.

"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 SA residents (and others) will be allowed to say on-line. It is recommended that Internet users read them carefully.

An almost identical Internet censorship Bill was previously introduced into SA Parliament on 8 November 2000 by then Attorney-General, Trevor Griffin. On approx. 7 June 2001, following strong community and industry opposition, the Bill was referred to a Select Committee of the Legislative Council for inquiry and report by 5 July 2001. The Committee reported on 30 October 2001 and recommended two minor changes to the original Bill. (These changes are highlighted in the text of the 2002 Bill on this site). On 1 November 2001 the Bill was passed by the SA Legislative Council on a vote of 15 to 5, with minor amendments recommended by the Select Committee. Those who sensibly voted against the Bill were: I Gilfillan (Democrats), M.J. Elliott (Democrats), S.M. Kanck (Democrats), T.G. Cameron (SA First), T.G. Roberts (ALP). The ALP allowed their members a conscience vote. The Bill was not voted on in the House of Assembly prior to the February 2002 elections.

The SA Bill is part of the second component of the Commonwealth Internet censorship legislation (effective 1 January 2000). Only two State/Territory Governments have taken steps to act on the Commonwealth Government's request that they enact complementary enforcement legislation applicable to Internet users and content providers. These are SA and NSW. However, on 6 June 2002, a NSW Parliamentary Committee recommended that the NSW Government not proceed with proposed laws almost identical to the SA Bill. The Qld Censorship Minister stated in December 2001 that Qld did not intend to introduce such laws.


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EFA Analysis and Comments on the Bill

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 SA Bill have made minor changes to the draft model national legislation issued in August 1999 for public comment by the SA A-G and some others, the SA Bill is a profoundly flawed document. For example:

  • Serious criminal justice issues arise, such that the SA Bill would require major amendments to ensure, at the least, that ordinary people in SA 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 South Australia 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. The instance of South Australian police seizing a book from an Adelaide book store (Pictures, containing photography by Robert Mapplethorpe) in January 2001 demonstrates that police are not specialists or even trained in interpretation of classification guidelines, nor should they be expected to be. The OFLC Classification Board decided that the seized book did not warrant a restricted classification, that is, it may legally be sold to minors. [Update 9 March 2001: Not satisfied with the decision of the Classification Board, the SA police appealed to the Classification Review Board, resulting in the book being classified Category 1 Restricted, that is, unsuitable for minors - the equivalent of R online under the proposed SA legislation. In effect, the police decided how this book would be classified. They were not under any obligation to appeal the decision of the national Classification Board, and if they had decided not to do so, the book would have remained classified Unrestricted.]

  • Proposed penalties for making available content online are double those applicable to sale and exhibition of films off-line. The maximum penalty applicable to content providers for making available matter unsuitable for minors is $10,000 even if the content is only made available to adults. The maximum penalty for sale, delivery or exhibition of an R classified film to a minor offline is $5,000 and there is no penalty for sale or delivery to adults offline.

  • Many of the flaws in the document appear to 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 SA, then SA 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 SA 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 SA criminal law of $10,000.
  • 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 SA 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.
  • 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. Meanwhile minors will continue to have unrestricted access to material provided by non-Australian content providers that would be classified R.
  • 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 SA Bill. The inability of the OFLC to cheaply and reliably classify web site content shows that the SA 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 SA (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.

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The Bill

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Parliamentary Committee Inquiry into the Bill

On 7 June 2001, following strong community and industry opposition, the 2001 Bill was referred to a Select Committee of the Legislative Council for inquiry. A special Committee was established for this purpose and chaired by the Attorney-General. It is most unusual in Australian Parliaments to have a committee inquiring into a Bill chaired by the Minister responsible for the Bill. The Committee members were: Trevor Griffin (A-G, Lib), Julian Stefani (Lib), Paul Holloway (ALP), Carmel Zollo (ALP), Ian Gilfillan (Dems).

The Committee invited written submissions from the public and the deadline for receipt of same was Thurs 28 June 2001. The Committee was initially scheduled to report by 5 July 2001. The reporting date was subsequently extended to 25 September 2001 and then to 27 November 2001.

The Committee received written submissions from:

  • Arts Law Centre of Australia
  • Australian Computer Society, SA Branch
  • Australian Library and Information Association (ALIA)
  • Electronic Frontiers Australia Inc (EFA)
  • Eros Foundation
  • IT Council for South Australia
  • South Australian Internet Association (SAIA)
  • Thomson Playford/Internode Systems Pty Ltd
  • Australian Family Association
  • Festival of Light, SA
  • Church of Jesus Christ of Latter-day Saints, SA
  • Young Media Australia
  • Mr Brendan Scott
  • Mr Peter Murchland
  • Mr D G van Wyk

The Committee held public hearings and four organisations appeared before the Committee (EFA was not invited). These were:

  • IT Council for South Australia
  • South Australian Internet Association
  • Festival of Light, SA
  • Young Media Australia

Apparently, the majority of the Committee had not the slightest interest in the views of ordinary Internet users and content providers.

On 30 October 2001, the Select Committee tabled a report on its inquiry in the Parliament. The majority (Liberal and ALP members) of the Committee recommended the Bill proceed after two minor amendments: one intended to ensure a content provider will not be held criminally liable for a specific circumstance beyond their control, that is, the failure of their ICH's security systems (a matter that EFA and others had raised) and another to add the words "make available or" into Clause 75B(2). While these amendments would be minor improvements, the Committee ignored or discarded the majority of concerns and issues raised. Ian Gilfillan MLC (Democrats) lodged a dissenting report stating among other things that "The Australian Democrats believe that this Bill in its current form is unworkable and undesirable."

The Committee did not make its report available online.

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News Reports and Online Discussions

News

Discussion Forums

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Historical Information: June 2001 - May 2002

(For updates since May 2002, see above)

  • 22 May 2002: The SA Internet Censorship Bill is not the law. The Bill was not passed by both Houses of SA Parliament prior to the SA election in February 2002, at which time the government changed from Liberal to ALP. The Bill was passed by the Legislative Council in Nov 2001 but was not voted on by the House of Assembly prior to the election. The Bill is not listed on the House of Assembly Notice Paper (i.e. the list of business to be dealt with by the House). If the ALP government chooses to proceed with the proposed law, this could occur in one of two ways. The House of Assembly could pass a motion to restore the lapsed Bill to the HoA Notice Paper (in which case the Bill would not need to be approved again by the Legislative Council), or the government could introduce a new Bill (containing the same provisions) which would have to be passed by both Houses. More detail about the procedure for dealing with lapsed Bills is available in the SA Parliament Standing Orders.
  • March 2002: As a result of the SA election in February, the SA Government has changed from Liberal Party to Australian Labor Party (ALP).
  • 27 January 2002: An SA election has been announced to be held on 9 February 2002. Hence the Bill will not be further considered by the Parliament until some time after the election.
  • 6 December 2001: The Bill was on the SA House of Assembly Notice Paper for 12 February 2002 (which was the next sitting date of the Assembly). It is not known to EFA whether the Bill will be considered by the Assembly on that date or will be deferred to a later date. (Note: It is now not likely the Parliament will sit on 12 February, just a few days after the SA election.)
  • 13 November 2001: The second reading speech on the Bill occurred in the SA House of Assembly. Debate was adjourned.
  • 1 November 2001: The Bill was passed by the SA Legislative Council on a vote of 15 to 5, with minor amendments recommended by the Select Committee. Those who sensibly voted against the Bill were: I Gilfillan (Democrats), M.J. Elliott (Democrats), S.M. Kanck (Democrats), T.G. Cameron (SA First), T.G. Roberts (ALP). The ALP allowed their members a conscience vote.
  • 30 October 2001: The SA Select Committee (headed by the SA A-G) tabled a report on its inquiry in the Parliament. (To EFA's knowledge, the report is not available online.) The majority of the Committee recommended the Bill proceed after two minor amendments: one intended to ensure a content provider will not be held criminally liable for a specific circumstance beyond their control, that is, the failure of their ICH's security systems (a matter that EFA and others had raised) and another to add the words "make available or" into Clause 75B(2). While these amendments would be minor improvements, the Committee ignored or discarded the majority of concerns and issues raised. Ian Gilfillan MLC (Democrats) lodged a dissenting report stating among other things that "The Australian Democrats believe that this Bill in its current form is unworkable and undesirable."
  • 25 September 2001: The SA Legislative Council approved a motion by the Attorney-General that the time for tabling of the Select Committee's report be extended until Tuesday 27 November. The week of 27 November is the last sitting week of the Legislative Council in 2001.
  • 16 August 2001: The SA Parliament has been in recess since 26 July and next sits on 25 September. The Select Committee's report on their inquiry into the Bill is scheduled to be tabled in the Parliament on 25 September. The Secretary to the Committee has advised (on 16 August) that the Committee has met, but has not authorised publication of submissions and are unlikely to do so prior to tabling of their Report - we are advised this is normal procedure relative to SA Parliamentary inquiries (and that submissions are available for perusal at the Committee office in SA Parliament House). Hence, EFA's submission is not available on our web site. However, EFA's submission contained information and views that are contained in other documents in this section of our site. EFA has no idea whether the Committee will recommend amendments to the Bill, nor when the SA Parliament will next debate the Bill, however, obviously nothing more will happen prior to the next Parliamentary session commencing 25 September.
  • 26 July 2001: The reporting date for the Select Committee's inquiry into the Bill was extended from 5 July to 25 September.
  • 25 June 2001: Answers to Questions on Notice to the Minister representing the Federal Attorney-General in the Senate, regarding how the OFLC classifies Internet content and fees charged, are now available online. Despite the Senate thirty day rule, it took the Minister or the OFLC well over two and half months to produce these answers. It remains unclear how much the OFLC would charge an Internet publisher for classification of a web page, although it would be at least $690 and is likely to be $1490 for SA residents and others outside Sydney. The answers raise numerous further issues.
  • 7 June 2001: Following strong community and industry opposition, the Bill was referred to a Select Committee of the Legislative Council for inquiry and report by 5 July 2001. The Committee invited written submissions from the public and the deadline for receipt of same was Thurs 28 June 2001. Submissions were to be sent to the Secretary to the Committee, Mr Chris Schwarz, at Parliament House in Adelaide.
    (Tel: 08 8237 9308, Fax: 08 8211 7658,
    Email: chris.schwarz@parliament.sa.gov.au).

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