Can Labor implement "clean feed" without legislation?

by Dale Clapperton

A question that has been asked a lot recently is this: can Labor implement their ‘clean feed’ proposal without legislative amendments?

Much turns on the answer to this question.  To get any legislation through the Senate at the moment, Labor require the support of either the Coalition, or all seven of the other Senators (five Greens, plus Steve Fielding and Nick Xenophon).  If the Coalition oppose the legislation, any one of those other Senators voting against it will ensure its defeat.  The Coalition look like they will oppose it, and Senator Scott Ludlam from the Greens was hostile to it in a Senate committee hearing earlier this week, so at this point there appears to be a decent chance that legislative reforms to implement ‘clean feed’ wouldn’t get through the Senate.

This is my analysis.  An executive summary of the current situation is that:

• Schedule 5 to the Broadcasting Services Act 1992 (Cth) allows the Australian Communications and Media Authority (‘ACMA’) to give ISPs an access prevention notice, requiring the ISP to take all reasonable steps to prevent end-users from accessing the content specified in the notice [cl 40 of Sch 5] – this would be sufficient to introduce a mandatory black-list;
• However, an ‘industry code’ may provide that ISPs do not have to comply with these notices if the code has an alternative regime in place [cl 60(3) of Sch 5];
• Such a code exists – the Internet Industry Codes of Practice, produced by the Internet Industry Association (IIA) and registered by the ACMA;
• Clause 19 of that code provides for an alternative regime as contemplated by Cl 40 of Sch 5, meaning that ISPs currently do not have to comply with access-prevention notices and for that reason Labor could probably not implement the mandatory ‘black list’ component of their proposal;
• Nothing in the Code or Sch 5 allows for the mandatory provision of a dynamically filtered service, meaning that Labor can probably not require ISPs to provide a filtered service, whether on an opt-in or opt-out basis.

Could the Code be changed to overcome these difficulties?  Yes and no.

• The Code, once registered, cannot be amended, only replaced [cl 65 of Sch 5];
• A new Code could only be developed by the IIA (or some other organisation with a legitimate claim to represent a particular section of the Internet industry) and approved by the ACMA, meaning that Labor can’t introduce a new Code without the cooperation of the IIA [cl 62 of Sch 5];
• Compliance with the new code is voluntary, unless the ACMA orders an ISP to comply with it, in which case it becomes mandatory;
• The ACMA, if satisfied that the Code is a total failure or partial failure, can override the provisions of the Code, in whole or in part, by determining an ‘industry standard’ [cl 70 and 71, Sch 5];
• The Minister (Conroy) can give the ACMA a written direction as to the exercise of its powers to do this [cl 70(8) and 71(8) of Sch 5];
• However, an ‘industry standard’ developed by the ACMA in this way is a ‘disallowable instrument’ and is subject to a Senate veto [cl 70(5) and 71(5) of Sch 5, and s 42 of the Legislative Instruments Act 2003 (Cth)];
• The votes of the Coalition Senators, plus any two of the non-Labor Senators (i.e. the five greens, plus Fielding and Xenophon) would be sufficient to disallow/veto any Standard that the ACMA tried to make to implement ‘clean feed’.

If we assume that the Coalition and at least two other Senators oppose Labor’s ‘clean feed’ proposal, Labor:

• Can’t get any legislative changes to implement it through the Senate;
• Can’t force ISPs to implement it because of the current Code;
• Can’t override the Code with an ‘industry standard’ because the Senate would veto/disallow it; and
• Can’t replace the Code without the cooperation of the IIA.

Unless I’m missing some key factor, the answer to the question seems to be that Labor can’t implement ‘clean feed’ without legislative changes unless the IIA cooperates with them.  The real wild card is then whether the IIA would cooperate with the government in this way.

This article originally appeared in Dale’s blog Defending Scoundrels. Reproduced with permission.