Extract from:
S.A. LEGISLATIVE COUNCIL HANSARD, Tuesday 5 June 2001

• Speech by Hon. Paul Holloway, Shadow Minister responsible for information technology
• Speech by Hon. Trevor Griffin, Attorney-General

Adjourned debate on second reading.

(Continued from 30 May. Page 1624.)

The Hon. P. HOLLOWAY: I support the bill. I also indicate my support for the motion that was moved by my colleague the Leader of the Opposition to refer this matter to a select committee. I wish to speak to the bill in the context of the shadow minister responsible for information technology matters. Most members in this parliament would agree that there is a problem with pornography on the internet and that something needs to be done about it. The problem is, of course, that we must deal with the matter in such a way that the overall outcome is helpful, not unhelpful.

As a member of the select committee that has been investigating internet gambling, I am well aware of the problems of dealing with content on the internet. It is very difficult. One always must make the choice: it is always a trade-off between taking a pure position on prohibition and taking a position that will work in practice because, as I am sure all members would be aware, the internet is an extremely difficult medium to regulate. Of course, it was devised with specifically that intention in mind; nevertheless, governments do have an obligation to protect their citizens.

At the same time, of course, we must consider that the internet is utilised by people in their own homes and policing of what goes on in relation to the internet is very difficult. Often technological changes occur quite quickly within this field that may or may not help in relation to policing the internet. This bill seeks to make several amendments to the South Australian Classification ( Publications, Films and Computer Games) Act 1995. This act forms part of the national legislative regime of classifications. The legislation is, indeed, complementary to the Commonwealth Classification Act 1995.

The most substantial change to this act is the insertion of Part 7A, which seeks to regulate online, that is, internet content. While the aim of the amendment is to complement the commonwealth Broadcasting Services Act 1992, it is important to consider the significant impact that these proposed changes could have on industry in this state. It is stated that the aim of this part is to deter or punish making available on the internet material which is offensive or which is unsuitable for children, that is, objectionable matter. However, it is the definition of what is objectionable matter that, I guess, is the concern of some people.

`Objectionable matter' is defined as ( a) a film that is classified X or that would, if classified, be classified X; or (b) a film or computer game that is classified RC or that would, if classified, be classified RC; or (c) an advertisement for a film or computer game referred to in paragraphs (a) or (b); or (d) an advertisement that has been or would be refused approval under section 29 Part 4 of the commonwealth act. The main concern of organisations that have contacted me and, I am sure, all other members of parliament is that a person who posts unclassified online content can be prosecuted if the online content would be prohibited if it was classified.

It is not simply a case of that material being removed: the person can be liable for a $10 000 fine. The same is true for matter unsuitable for minors. A much more complicated area is that the `content posted' would not fall into X or RC material but would be legally restricted to adults. The issue is not that this material should not be banned, although that may be an issue to some people (and these matters are conscience issues, certainly for members on this side of the parliament): the issue is that further consideration is needed to the definition of `prohibited material' and enforcement procedures. The issue is not the only one to concern industry groups and academic organisations that have contacted me.

I now intend to read into Hansard a couple of letters from people who have contacted me about this matter. I received this letter from a lecturer in screen studies at the Flinders University of South Australia, and it states:

I am writing to register with you my objection to the on- line services section of the classification. . . amendment bill 2000 and to urge you to make every effort in your power to repeal this legislation. As you are aware, there are several contentious points within the bill:

1. It makes information illegal on- line that is not illegal off-line.

2. The bill criminalises inability to foresee a non-unanimous decision of the Commonwealth Classification Board.

3. It applies criminal law to on-line content providers in a manner more severe than that applied to off-line film distributors/ exhibitors and magazine publishers.

4. The bill denies internet users the right to obtain a classification prior to publication, as granted to off- line publishers and fails to require that material be classified before police commence prosecution of an internet user.

5. It criminalises making information available to adults about `adult themes', including important social concerns such as `suicide, crime, corruption, marital problems, emotional trauma, drug and alcohol dependency, death and serious illness, racism, religious issues', except in a `discrete' manner, that is, with little or no detail and generally brief.

That is taken from the OFLC guidelines for the MA classification. The letter continues:

The recent debacle with SA Police confiscating a book of Robert Maplethorpe's art photographs surely demonstrates the inability of most censorship legislation to be enforced. Such a task is nearly impossible for the ubiquitous internet and bearing the cost of such a program will cripple the internet and new media industries of South Australia or, alternatively, entangle the courts in horrific fact finding missions when host services are situated in one state, the consumer in another, and the ISP-

which I gather is the internet service provider-

in yet another location. As a member of AIMIA (Australian Interactive Multimedia Industry Association) and a university lecturer in digital media, I have a stake in the health of South Australia's digital media industries. I urge you to consider the destructive potential this legislation can have for South Australia's profile in a global economy.

The concerns of that writer are echoed by some other email correspondence I have received from the director of a company based in Hong Kong. Part of the letter reads:

Even by your consideration of this bill, you have placed South Australia last in the Australian list of possible locations for operations and accordingly have placed South Australian jobs at risk. You have also made it a high priority for us to monitor the unfettered flow of information between Australia and the rest of the world.

In an article from the May 2001 issue of the Australian Personal Computer Magazine regarding the passage of this bill, Mr Kimberley Heitman states:

If passed (this legislation). . . will be the fiercest internet censorship law in the country as it will make it an offence to make material unsuitable for children available on line. . . Unlike the federal law, it targets individuals rather than ISPs and allows any police officer to bring a complaint to court. The federal laws order the removal of unsuitable material, but the SA bill also imposes a $10 000 fine . . . Many people feel that some sort of internet censorship is necessary, but this isn't the main issue in this case. What is worrying is that people wouldn't be able to know in advance what is banned.

These issues are obviously complex, and it is for that reason that the opposition believes that a select committee should investigate this. I should point out that I have quoted some of the concerns from those people who have written to us. Clearly some people have perhaps an unhealthy interest in this matter, and I think that was part of some of the approaches to us, but I have just concentrated on those whom I believe would have some credibility in terms of the concern the impact the legislation might have on the development of the information technology industries in this state.

What is really of concern to me, and I know that my colleague the Leader of the Opposition has touched on this, is that I keep hearing from people within the IT industry that they have not been consulted in relation to these matters. They are greatly concerned about the fact that this bill might provide enormous difficulties for them in terms of operating their business. They have no wish to breach the law. They have no wish in most cases to be a party to any of the sorts of activities that this bill would seek to outlaw, but they are concerned that they might unwittingly be involved in the web.

It is for those reasons that the opposition would like to see this bill referred to a select committee so that the people who are involved in the industry and who would therefore have to be at the front line in terms of dealing with this matter would have the opportunity to put their views to parliament so that, if they have any merit in them, we could take those views into consideration.

I will not say anything further on the matter. All of us would wish to see something done about the problems we have in terms of material on the internet, particularly that which would be available to children. However, as they say, the road to hell is often paved with good intentions. That is why we would like to examine this matter a little more closely so we can ensure that the legislation does what all of us would like it to do, namely, effectively deal with the problem of people having access to unsuitable material while at the same time we would like to see that it would not unnecessarily damage the IT industry within this state. In conclusion, we support the bill and support the proposal to refer it to a select committee.

The Hon. K.T. GRIFFIN (Attorney-General): I thank honourable members for their indications of support for the second reading of the bill. In relation to the remarks made by the Hon. Paul Holloway, a number of the correspondents who have written to him have obviously written to every member, including to me. I have responded at length to each of those who has written or e-mailed the government to try to help them understand that this is not the sinister piece of legislation that some make it out to be and that this is not the fiercest piece of legislation in the commonwealth in relation to dealing with objectionable material on the internet. I acknowledge that there has been concern, but there has also been a significant amount of misunderstanding about the objectives of the legislation and about its effect when one takes into account the drafting of it.

In some instances, hysteria has developed, which is totally unnecessary and certainly not based on an objective assessment of the legislation. Others would want to accept no responsibility for what goes onto the internet. As the Hon. Paul Holloway and other members have said in the course of this debate, there are concerns about material that might be available on the internet. Child pornography in particular is one area where, in this state, if a person in South Australia has downloaded or uploaded child pornography or has possession of child pornography and it is discovered by law enforcement authorities, it will be prosecuted. It is not unusual for me to sign off my approval in relation to prosecutions on such once or twice a month. The act requires that the Attorney-General's approval for the prosecution has to be granted but, where there is child pornography in those circumstances to which I have referred and there is sufficient evidence upon which to base a prosecution with a reasonable prospect of success, then I do not hesitate to give my approval to the prosecution being initiated.

With respect to those in the IT industry who argue that in some way or another this will damage South Australia's reputation, I refute that assertion. It does not bear close examination. The other issue raised by the Hon. Paul Holloway is the issue of consultation. I find it quite disappointing that those who are particularly involved with the internet industry have not been keeping open their eyes and ears in relation to either the print media or government web sites to identify that this bill was introduced seven months ago, was widely circulated by me and was the subject of press comment at the time. In addition, this legislation is state legislation developed as model legislation at the same time as the commonwealth was developing its own legislation enacted a year or so ago. That, too, was the subject of quite extensive consultation.

The Hon. Carolyn Pickles interjecting:

The Hon. K.T. GRIFFIN: I will deal with that in a moment. Other states have legislation much more wide ranging in relation to this issue than has South Australia. South Australia preferred to go down the path of the model legislation so that it is consistent with the commonwealth legislation.

To turn to the contribution of the Leader of the Opposition, she asked a number of questions about the bill and I will deal with the proposal to refer the issue to a select committee in a moment. Her questions were principally directed to the effects of clause 12 dealing with internet content and I answer them in that context. She asked whether any other states have introduced similar legislation as is proposed in this bill. The provisions set out in clause 12 are model provisions agreed on by censorship ministers through the Standing Committee of Attorneys-General. South Australia is the first state to introduce legislation in the terms of the model provisions, although I hope that others will follow. However, three Australian jurisdictions have already legislated in different terms to address the issue of offensive internet content. These are Victoria, Western Australia and the Northern Territory. All three pieces of legislation make it an offence to transmit RC (refused classification) level content over the internet. They also limit the material that can be made available to minors.

The Western Australian and Northern Territory laws go further and also make it an offence to obtain possession of such content, advertise it or even request its transmission. The Victorian law creates separate offences in relation to minors of any age and to minors under 15 years. However, the Victorian law does not create an offence in relation to merely requesting the material. Penalties differ as between jurisdictions. Imprisonment is possible in Victoria and Western Australia but not in the Northern Territory. The purpose of the model provisions developed by the standing committee is to minimise divergences in the approach to internet content and bring about by cooperation a uniform regime throughout Australia in keeping with the national scheme.

The Leader of the Opposition mentioned that it is alleged that the Office of Film and Literature Classification has not provided classification fees for internet content and asked whether this is correct. It is incorrect, except in the sense that it is the commonwealth and not the office which prescribes the fees. Under the national scheme internet content, which is covered by the scheme, will be either film or a computer game. Either of these can be classified by the national board on application. The classification process is as set out in the commonwealth act. Fees are prescribed in the commonwealth regulations.

The process is similar to that for the classification of off-line contents such as conventional films and publications. The Leader of the Opposition mentioned some suggestions made to her as to alternative solutions to the problem of offensive internet content. One was to introduce a pre-vetting process, allowing organisations to obtain a ruling as to the classification of material before putting it on line. I point out that this process is in fact available to content providers who wish to use it. They may submit the material for classification.

Another was to encourage the use of technology-based solutions such as content filtering software that blocks inappropriate sites to minors at the user's end. The commonwealth regime to which clause 12 is complementary has been designed to encourage the use of filtering software. The codes of practice under the commonwealth act require internet service providers to take reasonable steps to provide users with information about procedures that parents can implement to control children's access to internet content, including the availability, use and appropriate application of internet content filtering software, labelling systems and filtered internet carriage services.

Service providers can fulfil this obligation by directing users, by means of a link on their home page or otherwise, to resources made available for this purpose by the Internet Industry Association, the Australian Broadcasting Authority or others. Under Content Code 2, approved filters must be available to subscribers. In the case of prohibited content hosted outside Australia, the suppliers of the approved filters are notified of the site so that it can be covered by the filter.

However, filtering does not as yet provide a complete solution to the problem of offensive internet content. Content that does not contain the keywords or other identifiers that trigger the filter may get through but, nevertheless, be offensive. Conversely, the content that parents might wish their children to be able to access, such as educational sites about the dangers of drug abuse, might be blocked by a filter that selects for the names of or slang terms for those drugs. Also, software may be in circulation that can disable or circumvent some filters. Complementary approaches are therefore desirable.

It was also suggested that the film classification scheme, and the R classification in particular, should be reviewed as to their effectiveness for internet content. Censorship ministers have, in fact, agreed that a review of the guidelines for classification of film, videotape and computer games should take place this year. This is part of the regular ongoing review of all guidelines covered in the scheme. Publications guidelines were reviewed in 1999. The review will be publicly advertised, and I hope that many South Australians, including internet content providers and internet users, will take the opportunity to express their views.

As to industry education, one aspect of the cooperative scheme is the provision of a team of community liaison officers who make site visits to each jurisdiction with the aim of providing to industry information about the scheme and how to comply with it. Hitherto, officers have on their visits to South Australia made contact with cinema operators, video retailers, newspaper publishers and others to make them aware of their legal obligations, and I see no reason why this scheme could not also comprehend internet content providers. There may also be other avenues to which we can give consideration. The Leader of the Opposition also asked four specific questions to which I will respond.

1. As to the economic impact of this bill on South Australia's information technology industry, I do not believe the bill will have a significant economic impact. It is important to remember that the definitions of `film' and `computer game' specifically exclude recordings for business, scientific, educational or professional purposes unless they contain a visual image that would lead to a classification of MA15+ or higher.

I would suggest that most legitimate business web sites would only include visual images of an innocuous nature and, therefore, would be unlikely to be covered by the provisions. It should be pointed out that the commonwealth has recently passed amendments to its act so that the criterion in future will be whether the image would be classified M or higher. Nevertheless, I would be surprised if there is a problem in practice for businesses. At the same time, the commonwealth has added to the list of exempt films films such as news reports and documentary records of sporting, musical, religious, community and cultural events.

A person who is in doubt will be able to apply for a certificate that a particular film is exempt. If a business is genuinely concerned that a visual image that it wishes to use may be classifiable at a higher level than M, it may wish to have the material classified to remove doubt. If the image is of that classification, it may wish to consider using some other image. This is not unlike the off-line requirement that the covers of publications must be suitable for public display. The distributors of publications simply accommodate this in their business planning.

2. As to the actual practical benefits of clause 12, I presume that this question is asked in the context that most internet content does not originate in South Australia but overseas. Nothing can be done about offences occurring beyond the jurisdiction of this state. Some would argue that, therefore, it is not worth doing anything about the issue at all. However, an analogy can be made with global pollution problems, for example.

Only a small proportion of the world's atmospheric pollutants emanate from South Australia or, indeed, from Australia. Nevertheless, this is not a reason why we should not do what we can to reduce our own contribution to the problem. It is only if each jurisdiction is prepared to do its part that the global problem can be addressed. The practical benefit delivered by clause 12, then, is that persons in South Australia who upload offensive content onto the internet are liable to be punished, just as they would be if they disseminated this content by means of film or videotape off-line.

3. As to alternative methods and models of regulating internet content, it must be understood that the model proposed by clause 12 is designed to be complementary to the existing commonwealth regime under the Broadcasting Services Act 1992, which has been an operation for almost 18 months. The government has not tried to devise from scratch and independently a regime for South Australia alone but has cooperated in the development of a model that will mesh with and complete the existing commonwealth law.

There is no point in South Australia devising something that ignores the existence of the commonwealth law or could run the risk of inconsistency with it. What has been done is to extend the present scheme for the classification of other content to internet content by applying criminal penalties to content providers. Of course, there are other approaches. One could decide to do nothing, so that the responsibility for offensive content falls not on the person who makes it available but on others, such as the viewer and the internet service provider, who perform a mopping-up exercise.

However, it would seem anomalous to provide that the material should not be available on the internet and will be removed if found (as the commonwealth law does), without backing this up with sanctions against the person who makes it available (as this bill proposes). Alternatively, one could rely on users to apply filters, so that those who do not and who encounter offensive content would have no recourse. However, this would be out of keeping with the off-line position, where it is the person who puts the material into circulation, such as the seller or exhibitor, who is responsible and not the reader or viewer.

It would also, as mentioned, be dependent on the effectiveness of filters. Alternatively, again, one could require all online content to be preclassified, as are commercial films and videotapes. This would, however, be very onerous and potentially costly. In my view, the approach taken in the bill places the responsibility where it should be-not with the internet service provider or content host, nor with the viewer, who may have no wish to encounter the content-but with the person who chooses to make the material available on the internet.

4. As to the volume of information that will no longer be available on the internet if this clause is passed, it is impossible to say. The bill seeks to render unavailable material that is classified or classifiable X or RC, and advertisements for such material (it would restrict to adults, but not make unavailable, content that is classified or classifiable R). There is no way of being certain how much material originating in South Australia is on the internet at any given time, and perhaps the amount fluctuates daily.

I would like to think that the great majority of material being made available on the internet by South Australians is neither X nor RC level material, nor advertisements for such material, but I am unaware of any method by which a reliable assessment of the exact volumes of such material originating in South Australia could be made.

For a moment or two I would like to address the issue of the select committee. With respect to the Leader of the Opposition and the Hon. Paul Holloway, to refer the whole bill to a select committee is, in my view, over-kill and it does not address what seems to be the central issue in relation to this bill, that is, internet content. I think there are a significant number of very beneficial initiatives in the rest of the bill. I think that clause 12, which relates to internet content, is also a beneficial initiative, but I recognise that there is some concern about that particular clause of the bill.

I do not think that clause 12 should go to a select committee, but I propose that the bill be split into two bills so that clause 12, which relates to internet content, would be the subject of a separate bill which can be referred to a select committee, and the rest of the bill (probably called the No. 1 bill) would be dealt with expeditiously so that it can go to the House of Assembly. In any representations made to me or, as far as I can recollect, in any contributions made in the Council, I have not heard any criticism of the other parts of the bill. So, I hope that those parts will receive expeditious consideration.

As I said, I would not have thought that any of the bill needs to go to a select committee, but I am prepared to accommodate the concerns that have been raised, and I will move to split off clause 12 and refer that to a select committee. I would like to think that we can deal with that expeditiously. This matter has been on the Notice Paper since 8 November last year, and everyone has had an opportunity to make representations to the government, the opposition and other members of parliament. In those circumstances I hope that, if there are to be written submissions, they can be made quickly and that, if submissions are to be made in person, we can deal with those quickly. I do not think that people need to do a lot of preparation in arriving at the point of making a submission, and I hope that we will then be able to dispose of the select committee very quickly. In order to enable the appropriate processes to be followed to split the bill, I now seek leave to conclude my remarks later.

Leave granted; debate adjourned."