The following document was emailed by the SA Attorney-General's Office on 14 and 15 March 2001 to members of the public who wrote to the SA Attorney-General to express their concerns regarding the proposed SA Internet censorship legislation. EFA's comments on the contents of the document are available in EFA's letter to the A-G of 19 March 2001.
Subject: Classification Amendment Bill 2000
From: ...(AGD) <[email protected]>
Date: Wed, 14 Mar 2001
Please Quote ID No: 01AG...
Please find attached a response to your e-mail dated ... March 2001.
<<response Classifications Amend. Bill.doc>>
Senior Administrative Officer
"The information in this e-mail may be confidential and/or legally privileged. It is intended solely for the addressee. Access to this e-mail by anyone else is unauthorised. If you are not the intended recipient, any disclosure, copying, distribution or any action taken or omitted to be taken in reliance on it, is prohibited and may be unlawful."
Thank you for your email expressing your views about the Classification (Publications, Films and Computer Games) (Miscellaneous) Amendment Bill 2000, which was introduced into the South Australian Parliament last November. You may be interested in the following background information about this Bill.
Are we the first?
South Australia is not the first Australian jurisdiction to legislate to regulate internet content. Western Australia, Victoria and the Northern Territory have already done so. If you are interested in these provisions, they can be found in the Western Australian Censorship Act 1990 (sections 99 ff), the Victorian Classification (Publications, Films and Computer Games) Act 1995 (Part 6 - On-line Information Services) and the Northern Territory Classification of Publications, Films and Computer Games Act (Part VII - Computer Services).
What do the provisions do?
The South Australian Bill aims to subject online content to similar rules as apply to offline content. It makes it illegal to make available or supply objectionable content online, which means content which is or would be classified X or RC. It also requires that matter unsuitable for minors, that is, R-level content, must be subject to a restricted access system so minors can't access it.
Details of the classification criteria are published in the film classification guidelines, which can be downloaded from www.oflc.gov.au. Essentially, X material is non-violent depiction of actual sexual intercourse, and RC material is material that is so highly offensive that it is banned - such as child pornography, instruction in crime, incitement to commit crime, sexually violent material, etc. R-rated material is contentious material legally restricted to adults only.
The Bill is complementary to the Commonwealth laws. While the Commonwealth legislation deals with internet service providers and content hosts, the Bill deals with persons who make content available on the internet.
What online material is caught?
Material which is in stored form and accessible using an internet carriage service, is caught. This covers websites, newsgroups and bulletin boards. Ordinary email is excluded from the Bill. Real time chat, which is not stored, is not caught.
How are people meant to know how the content would be classified?
The offence is only committed if the person knows that the content is objectionable/unsuitable, or is reckless about whether it is or not. Recklessness involves knowing that there is a substantial risk that the matter is objectionable/unsuitable, but making it available anyway. Police must prove this. If they can't prove that the person knew or was reckless, the person is acquitted.
Of course, if a person is worried and wants to be quite sure, he or she can have the proposed material classified before making it available online.
Does the Bill mean it's up to police to decide what's offensive?
No. Police do not decide. The material has to be classified by the national Classification Board, using the nationally agreed guidelines which apply to films. The exception is where the defendant agrees with police that the material would have been classified X or RC. Police can invite the defendant to sign a form agreeing that the material is X or is RC. If the person signs, the notice acts as evidence and there is no need to have the material classified. Needless to say, people who don't agree with the police won't sign. The police will then need to prove the classification in the ordinary way. However, if police were right and the material proves to be X or RC, the defendant pays the classification fee. Note that this procedure does not apply where the material is alleged to be R.
Won't the Bill stifle the discussion of 'adult themes'?
Adult themes are taken into account in classifying films. However, they don't necessarily result in the film being restricted to adults, or banned. Adult themes are permitted in M and MA rated films. At MA level, for example, content such as in 'Saving Private Ryan' (war theme) and 'The Green Mile' (death penalty theme) and 'The General's Daughter' (rape theme) can be accommodated. At M level, themes such as the holocaust/racial persecution (eg 'Schindler's List') can be accommodated. Adult themed material will only result in R classification if the theme is treated with a very high intensity. R level material can still be made available under the Bill, as long as it is subject to an approved restricted access system. There should be no undue restriction of the discussion of adult themes.
Also, not all types of internet material are covered. A recording for business, accounting, professional, scientific or educational purposes is not a 'film', unless it contains an image which would result in an MA or higher classification. Hence, there should be no restriction of educational, scientific or professional discussion.
Is it true that it will be an offence to have R material on the net, even if no minors access it?
The material must be protected by an approved restricted access system (ie a password or PIN). Otherwise, an offence is committed. This is because, if it is not protected, there is no guarantee that minors won't access it. As long as it is protected by an approved system, there is no offence. This is similar to the existing requirement that some publications must be sold in a sealed bag, even if all the customers who come into the shop are adults, or that only adults can be admitted to a cinema where an R film is screening.
How do we know the Bill won't have a 'chilling effect' on free internet discussion?
The best indication is the fact that the existing laws in WA, Victoria and the NT do not seem to have had any effect of this kind.
I hope this is of assistance to you in evaluating the Bill and thank you for your comments.