13 June 2002
Veil of Secrecy Remains Over Internet Censorship
The Administrative Appeals Tribunal yesterday ruled that the Commonwealth Government's Internet censorship regime would be ineffective if it did not operate under a veil of secrecy, unlike offline censorship laws.
On 12 June 2002, the decision of the Administrative Appeals Tribunal ("AAT") in the Freedom of Information ("FOI") case, Electronic Frontiers Australia Incorporated and Australian Broadcasting Authority (Q2000/979), was handed down by Deputy President S.A. Forgie.
In essence, the AAT found that if the veil of secrecy over the ABA's censorship decisions was removed, the ABA would receive "substantially" less complaints about Internet content from the public and overseas hotlines and therefore the ABA's ability to undertake its functions would be "substantially hampered".
Therefore, the AAT ruled that the information requested by EFA was exempt from disclosure on the ground that "disclosure would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct" of the ABA's operations (s.40(1)(d) of the FOI Act) and that the public interest in disclosure (s.40(2)) was outweighed by the adverse effect on the ABA's operations they considered would result from disclosure.
"The decision flies in the face of assurances given by the Minister for Communications, Senator Alston, to the Commonwonwealth Parliament that the Internet censorship scheme would not censor censorship decisions themselves", said EFA's Executive Director Irene Graham. "The ABA has consistently implied that EFA was seeking URLs of material involving child pornography, but that is not factual. We told the AAT that, in the presence of the ABA, but it's apparently more convenient to the ABA to continue to imply that is what the case was about."
The transcript of the hearing in the AAT on 18 July 2001 shows that EFA had made clear that it was not seeking access to material involving child pornography and that the AAT understood that:
MS GRAHAM: ...We consider that the ABA should be required to point out clearly which documents that they are seeking to deny access to actually involve chid pornography. Those documents should be clearly exempted and we can take out the whole debate about child pornography. Those documents should be specifically exempted and then we can deal with the matter of the information that EFA is really seeking access to which is not information that is illegal to possess. The information that we are being denied is, in effect, the same as if the Commonwealth Government or the OFLC decided that members of the Australian public were not allowed to know that the film, Salo, for example, had been refused classification in Australia.
THE D.PRESIDENT: Now, just to clarify that, you just said that you didn't ever believe you'd be given access to the URLs. Is that what
MS GRAHAM: Just common sense would suggest to us that if it was
material that the ABA had reported to the police as being child
pornography it would seem to us common sense that, since that is illegal
to possess - - -
THE D.PRESIDENT: Yes, that's right.
MS GRAHAM: - - - we wouldn't have been given that.
THE D.PRESIDENT: No, that's fine. I just wanted to make doubly
clear that's what you said."
Information that EFA has been denied access to includes information about Internet content that was submitted by the ABA to the Office of Film and Literature Classification for classification and classified by the OFLC as not prohibited on Australian sites [despite ABA implications to the contrary] and also content classified R18 (permitted under the law that the ABA administers provided access to same is restricted by an ABA approved adult verification system).
In its decision, the AAT observed that the "veil of non-disclosure" could bring into question the integrity of the scheme under the Act and that "secrecy may of itself undermine the public's confidence" in the scheme.
The AAT said that they had "found the issues in this case to be of some difficulty" and had made a number of general observations that "raise important issues relating to censorship, openness of government and even to the confidence that the public has in agencies of government to implement and administer its schemes with integrity for secrecy can ultimately lead to the public's questioning integrity even where there is no need for such questioning. They also raise questions as to the effectiveness of the scheme to carry out the objects identified in ... the [Broadcasting Services] Act."
In concluding remarks, the AAT said "We note that the scheme is to be reviewed before 1 January 2003 and would hope that the review is able to incorporate issues of the type that have faced us in this case".
EFA is presently reviewing the AAT decision and will be issuing a report on the findings and ramifications of the decision in the near future.
-- Ends --
AAT decision Q2000/979, 12 June 2002:
EFA FOI request on ABA - Overview
EFA FOI request on ABA - Overview
Frequently Asked Questions (FAQ) about FOI Request and AAT hearing, 23
EFA's Statement of Facts and Contentions lodged in the AAT, January 2001
Regulatory Failure: Australia's Internet Censorship Regime, 5 May 2001
Senator Alston's assurances relative to non-secrecy of censorship
Senate Parliamentary Debates, Committee of the Whole consideration of
the Broadcasting Services Amendment (Online Services) Bill, Senate
Hansard, p. 5271, 25 May 1999 (PDF 530 Kb).
Ms Irene Graham, EFA Executive Director
Phone: 0412 997 163
Email: ed at efa.org.au
Electronic Frontiers Australia Inc -- http://www.efa.org.au/
representing Internet users concerned with on-line freedoms
URL of this release: http://www.efa.org.au/Publish/PR020613.html