Commonwealth of Australia


As the only representative of a Western nation in this research project, the Commonwealth of Australia proved to an interesting nation in which to research censorship, especially the Internet. As a consequence, this section concerns itself not just with Internet censorship in Australia but also on how the Internet, as a porous entity, has impacted on censorship

Political Background

Australia is a Constitutional/Liberal Democracy. Basically, it is a system where the rights of the individual is contested against the opinions of the majority of society via the democratic ideal, where majority rules. Basically it allows for an open debate between Individualism and Responsibility to the wider community.
This illustrates the philosophy of liberalism which hugely influences Western thought.

Interestingly, the right to freedom of opinion or expression is not protected by the Australian constitution - so theoretically the government may restrict or censor speech as they see fit.
Freedom of expression is more an implied right, rather than legally enforceable. [13]

Censorship Law

The constitution empowers the Commonwealth Government to regulate telecommunications and broadcasting services, and imported material. Locally produced material on the other hand is regulated by the State governments. Thus Censorship laws vary not only according to different material (TV, film, print etc.), but state and territory as well.
Interesting to note is that content available via mobile phones falls under the definition of online content.

ACMA

The Australian Communications and Media Authority (ACMA) was established on 1 July 2005 by the merger of the Australian Broadcasting Authority (ABA) and the Australian Communications Authority (ACA). The ACMA is responsible for the regulation and monitoring of:

  • broadcasting
  • the internet
  • radiocommunications
  • telecommunications.

ACMA administers a co-regulatory scheme for online content. The scheme is established under Schedule 5 and Schedule 7 of the Broadcasting Services Act 1992 (the Act) and aims to address community concerns about illegal and offensive content online.

Co-regulation means that Government, industry and the community all have roles to play in managing online safety issues.

Regulation

As a consequence, Australia is considered to have the most restrictive Internet policies in the Western world. However, there are huge disparities between the highly restrictive laws and the actual enforcement of the laws.

The basis of these laws is one of the most commonly stated reasons for justifying censorship in the west - “we need to protect children from harmful content”.

The Internet is regulated according to the Broadcasting Services Act of 1992 most recently updated in 2000 with the Net Oppression Act. It is a complex document of laws, further complicated by the fact that each state have their own set of laws that regulate the internet along with the wider law laid down by the national government.

Classification and Prohibited Content

Internet content is by the Classification Board (formerly the Office of Film and Literature Classification). Online content classified according to the stricter classifications applied to film rather than those applied to publications such as books.
Content that are strictly prohibited include classifications include real explicit sexual and violent acts, child pornography, sexual violence, drug use, and most recently “material that advocates the doing of a terrorist act.”

Below is a table outlining the categories of online content classifications and their prohibition status as outlined under the Broadcasting Services Act 1992:

Classification Type of Content
RC or X 18+ This includes real depictions of actual sexual activity, child pornography, depictions of bestiality, material containing excessive violence or sexual violence, detailed instruction in crime, violence or drug use, and/or material that advocates the doing of a terrorist act.
R 18+ Content not subject to a restricted access system (ras) that prevents access by children. This includes depictions of simulated sexual activity, material containing strong, realistic violence and other material dealing with intense adult themes.
MA 15+ Content provided by a mobile premium service or a service that provides audio or video content upon payment of a fee and that is not subject to a restricted access system (ras). This includes material containing strong depictions of nudity, implied sexual activity, drug use or violence, very frequent or very strong coarse language, and other material that is strong in impact.

Classifications are based on criteria outlined in the Classification (Publications, films and Computer Games) Act 1995, National Classification Code and the Guidelines for the Classification of Films and Computer Games 2005. [6]

Under the Commonwealth (national) law, it is not a criminal offence to host or produce prohibited content for distribution on the net. However, some states and territories, namely NT, Vic, SA, WA, do have laws that criminalise such behavior.

Restricted Access Service (RAS)

This is a system to restrict access to age restricted content. Restricted access systems are adult verification devices that allow only people who are 18 years or older to access adult material on the internet. These systems are in place to protect children from exposure to material that may be unsuitable for them.

As of 20 January 2008, new rules for restricting access to age restricted content was implemented. Details can be found at the ACMA page for New restricted access arrangements

Impact

One of the central concepts behind the law is that the Content providers and ISP’s owners are held accountable for online content rather than the actual producer of the content. Thus it is the distributors of content rather than content producers who face the brunt of penalties in relation to uploading prohibited content online.
With content such as Child Pornography however, criminal charges will be laid on the person responsible for producing the content, as well as the person responsible for the server.

The laws are enforced on two levels – content hosted on Australian servers and content hosted on overseas servers.

  • With local servers, a take down notice is issued to the ISP - Failure for local ISP’s to comply results in a fine of AU$27500 for every 24 hrs that content remains on the server.
  • If content is hosted overseas the website is added to a blacklist, which the ACMA will send to content filtering companies who control the filtering systems for Internet in Australia. [11]

There have been cases where sites that have been taken down on the orders of the ACMA simply moved onto off shore servers yet retaining the same domain name/url. So the effectiveness of the ACMA in regulating internet content, especially international sites, comes into question.

The ACMA has international liasons with nations around the world to help regulate content. Details can be found on their International co-operation page.

Case Studies

Despite the fact that all the legislation and regulations were easily accessible, (including government domains), examples of internet censorship were not.

This is largely due to the fact that the Censorship law operates under a level of secrecy, allowing the ACMA to exercise strict confidentiality.

The scheme operates under a level of secrecy that has no parallel in the administration of Australian censorship policy of other media and in 2003 the Commonwealth Government increased the pre-existing level of secrecy by changing the Freedom of Information Act, irrespective of observations made by the Administrative Appeals Tribunal in June 2002 when handing down its decision in an FOI case involving EFA and the ABA. On 27 June 2002, the Federal Government introduced proposed amendments to the FOI Act into Federal Parliament to increase the existing level of secrecy by exempting more information about administration and operation of the regime from disclosure under FOI. The Bill completed its passage through Parliament in September 2003[4]

This occurs despite the fact that the Freedom of Information Act in Australia is quite open, and this level of secrecy has had no precedent with the regulatory schemes for other media platforms. There is no justification for this as yet, and Electronic Frontiers Australia says ''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.'' [5]

In regards to the blacklist of banned sites, the most I could find out was that the list contains 800 web pages, most of which are gambling sites.

An interesting exception was the case is from 2001, involving a Melbourne based news blog Melbourne IndyMedia, and the US Secret Service. It was however, fought as a defamation case rather than involving censorship laws, which evidences the changing nature of censorship on the Internet. [2]

Current/Future

A recent development is the proposal for a mandatory Clean Feed filter to be applied to all ISP’s in Australia. The new labour government re-introduced discussions on this plan in late 2007 and intends to implement it by the end of 2008 [3]. The government again justifies it through the protection of children, with Telecommunications Minister Stephen Conroy saying that the scheme will better protect children from pornography and violent websites.[1]

It comes at a time when other democratic nations, including the UK and Japan, are also implanting national filters to be placed on their Internet Services. This symbolises a rethinking of censorship ideologies and the resulting policies by governments.

Bibliography
1. ABC NEWS, 2007, Conroy announces mandatory internet filters to protect children, ABC News, viewed 28 May 2008, http://www.abc.net.au/news/stories/2007/12/31/2129471.htm
2. ANON, NO DATE. Internet censorship in Australia, Wikipedia, viewed 19 May 2008, http://en.wikipedia.org/wiki/Internet_censorship_in_Australia
3. ANON, 2008. Australian Gov. Mandatory ISP Filtering/Censorship Plan, http://libertus.net/ Libertus], viewed 22 May 2008, http://libertus.net/censor/ispfiltering-au-govplan.html
4. ANON, 2006. Internet Censorship Laws in Australia, Electronic Frontiers Australia, viewed 20 May 2008, http://www.efa.org.au/Issues/Censor/cens1.html
5. ANON, 2003. Amendments to FOI Act: Communications Legislation Amendment Bill (No. 1) 2002, Electronic Frontiers Australia, viewed 20 May 2008, http://www.efa.org.au/FOI/clabill2002/index.html
6. Australian Communications and Media Authority 2008, Online Regulation, viewed 20 May 2008, http://www.acma.gov.au/WEB/STANDARD/pc=PC_90169
7. ATKINS, R., MINTCHEVA, A., 2006. Censoring Culture - Contemporary Threats to Free Expression, The New Press, New York.
8. CRAWFORD, K., 2003, 'Control-SHIFT: Censorship and the Internet', in Remote Control, Cambridge University Press, Cambridge, pp. 173-195.
9. PARLIAMENT OF NEW SOUTH WALES 2002, Censorship in Australia: Regulating the Internet and other recent developments, viewed 22 May 2008, http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/key/ResearchBf042002
10. PARLIAMENT OF AUSTRALIA 2001, Censorship and Classification in Australia, viewed 20 May 2008, http://www.aph.gov.au/library/intguide/sp/censorship_ebrief.htm
11. SCOTT, B., 1999. An Essential Guide to Internet Censorship in Australia, Gilbert + Tobin Lawyers, viewed 18 May 2008, http://www.gtlaw.com.au/gt/site/articleIDs/E075543AA5A3F06DCA256D33001BF8F2?open&ui=dom&template=domGT
12. CROEN, E., NO DATE. Australia and New Zealand, Opennet, viewed 18 May 2008, http://opennet.net/research/regions/au-nz
13. JORDON, R., 2002, Free Speech and the Constitution, PARLIAMENT OF AUSTRALIA, viewed 20 May 2008, http://www.aph.gov.au/library/pubs/rn/2001-02/02rn42.htm

*More internet resources can be accessed via Kiwi_san's del.icio.us account - Kiwi_san Censorship bookmarks

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