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.


  1. Good to hear that this side of the story is being reported, even if the mainstream media are either not deeming this newsworthy, or are being otherwise suppressed. Go EFA!

    Comment by Anonymous on 31 October 2008 at 02:25
  2. The IIA have already indicated on 28 August 2007 that they are opposed to mandatory server level filtering, this is listed on their website.

    Comment by Jeremy Pignalosa on 2 November 2008 at 08:41
  3. We must not let them get away with it, hiding behind " child abuse" " paedophilia" " pornography". Their have hidden agenda and that is to control the thought process of the masses like Chinese do.
    Parents have final say what their kids are able to access over internet, parents themselves should determine what is appropriate and what is not. I am grown man capable of making my own decisions do not need government to tell me what is appropriate and what is not. I will decide that.

    Comment by Rastko Petrovic on 4 November 2008 at 06:58
  4. I am slowly getting sick of this governments intense need to nanny state this country.

    I am 47 years old and I will damned well decide for myself what is appropriate and what is not.

    NO Government censorship.

    This is an assault on free speech.

    Comment by Nemesis12 on 4 November 2008 at 09:27
  5. First compliments to Dale Clapperton for the excellent work you have done
    so far on the Clean Feed issue.

    I've published a short article pointing out that Conroy's policy seems
    more akin to contemporary Turkey than America under an Obama Presidency.
    To quote a Turkish academic: "Turkish politicians haven’t had any real vision
    on how to develop the Internet. There are more people working on censoring
    it than developing it"

    Obama's policy is a pleasant contrast:

    "Obama values our First Amendment freedoms and our right to artistic expression
    and does not view regulation as the answer to these concerns. Instead, an Obama
    administration will give parents the tools and information they need to control what
    their children see on television and the Internet in ways fully consistent with the
    First Amendment."

    Australia's international competitiveness is needlessly at risk. Outrageous!


    Comment by Syd Walker on 4 November 2008 at 20:17
  6. I still can't see how they "content filter" https. and if they can, isn't that a hack. Wont that be illegal in a number of countries even if made legal here?
    eg USA and EU.
    i.e will an ISP intercepting offshore traffic be liable? EU privacy laws? and US "terrorism" laws. (then the the US FTA)

    Comment by Greg in Brisbane on 5 November 2008 at 04:50
  7. @ Greg:
    Thats probably true, I doubt they would attempt to filter https. But to use https it must be enabled on both ends of a conversation, and I doubt many sites on the blacklist would use https for anything other than login/cash transactions.

    Comment by Capn P on 6 November 2008 at 23:46
  8. The trial report said they had the capability of filtering https but if they don't kids on facebook etc will learn about https in 5 minutes and then access anonymous web proxies in 6. Trying to block all those would be massive and dynamic.

    Also I have been following a development with skype and social networks where voip is carried along with normal web pages and messaging. Now voip is covered by the Telecommunications Interception Act and needs a approval on a case by case basis. How on earth are they going to separate out this or are we moving to an era of universal phone tapping.

    I have worked for Govt and this sounds like the time a few years ago when a State Minister wanted to ban all cookies. I had a difficult time convincing him that it would effectively kill the Internet - these days the bureaucracy wont say anything but "Yes Minister"

    Comment by Greg in Brisbane on 7 November 2008 at 01:21
  9. It comes as a real surprise to me that a Labor government would do such a thing!! I stumbled across an article on Farmonline, probably the whole thing will be soon forgotten, if I remember correctly, the coalition tried something similar under the guise of "save the children" spin. It will end up the same way as the tax on pre-mix.... lots of spin to start with "keep the teenagers safe" but at the end Rudd came clean "massive revenues lost"..... Government will never tell the truth unless it's convenient!!!! Best socialist state I ever lived in............

    Comment by Peter on 7 November 2008 at 15:23
  10. I doubt the IIA will support this diabolical (and annoyingly, practically unheard of to the public) act, but lord help us if they do

    Comment by Tom, Adelaide on 12 November 2008 at 06:59
  11. I'm ashamed that our govt is this stupid. labor has been in power not even 1 year and they spend all the surplus and talk censorship of the people. Equilibrium or Utopia? censorships like iran and china have in place are abominations that cause alot of death and suffering for those that don't conform. The fact that our government has considered this sickens me

    Comment by Elth on 14 November 2008 at 01:28
  12. The whole concept of this is disgusting in the extreme. How dare they, the Rudd Labour goverment attempt to decide what information I can and can't see. Are we going to have to learn Mandarin as well? Kevin Rudd you are an idiot and I'm proud to say I did not vote for you. Stay out of our lives.

    Comment by Sharon Wilson on 14 November 2008 at 02:05
  13. KEVIN RUDD IS A TRAITOR, he is selling us out quicker than you can say, “where’s the Australia we loved.” How dare he sell us out to the New World Order, using porn as an excuse to sensor. How dare he swagger around while people are getting kicked out of their homes.

    It’s not rocket science they use a good cause like ridding porn to pass the bill, then you cant get rid of the stupid thing...It is for censorship anyone the government doesn’t like...its plain and simple.

    Wake up Australia it was a big mistake putting this guy in, get this traitor out in the next election.

    This censorship is going to happen in Canada and The Uk. It is the global elite stamping their New World Order authority on the world.

    Watch out because it is documented they are going to phase internet 1 out and bring in internet 2 a totally controlled and censored internet where you will be paying for a lot more.

    Comment by brad on 15 November 2008 at 02:46