Submission

13 February 2002

NSW Internet Censorship Bill

This submission addresses the On-line Services section (Schedule 2) of the NSW Classification (Publications, Films and Computer Games) Enforcement Amendment Bill 2001. It does not address other sections of the Bill.

Contents:

1. Executive Summary
2. Introduction
3. Background to the Bill
4. Breadth of information covered
    4.1 Matter unsuitable for minors ("R")
         - News and current affairs, medical and public health information,
          self-help/support discussion groups, discussion on social and
          political issues, art works, court judgments and transcripts, etc
    4.2 Objectionable matter ("X" and "RC")
5. Types of Internet content covered
    5.1 Text on Web pages and conversational material
    5.2 Email
    5.3 Newsgroups
    5.4 Chat rooms and chat and bulletin boards
    5.5 Summary of restriction on online discussion between adults
    5.6 Comparison with 1999 draft model prepared for inclusion in NSW Act
6. Criminal justice issues and inconsistency with NSW offline laws
    6.1 Material legal offline to be illegal online
          6.1.1 Criminal offence to provide "R" material to adults online
          6.1.2 Criminal offence to provide "Category 2" Publications
                  to adults online

          6.1.2 Criminal offence to provide advertisements suitable for minors
    6.2 Criminal proceedings commence prior to classification, unlike offline
    6.3 Criminal conviction enabled without classification of material, unlike
         offline

    6.4 Reversal of the onus of proof, unlike offline
    6.5 Conviction enabled in circumstances beyond the control of
         the accused

    6.6 Criminal conviction enabled without unanimous (jury) agreement on
         classification

    6.7 Cost prohibitive to obtain classification pre-publication due to
         Commonwealth law

    6.8 Offence Element: Recklessness
    6.9 Defence: Impracticability of approved restricted access system
7. Enforceability issues
    7.1 Definitions and Interpretation
          7.1.2 "Classified"
          7.1.2 "Internet content" and "consists of a film"
          7.2.3 Film -vs- Publication: OFLC classifications for NSW police
          7.1.3 Two classification fees payable in law enforcement cases
    7.2 Constitutional Validity
          7.2.1 Overview
          7.2.2 Concurrent State and Commonwealth Law
          7.2.3 Validity of co-operative schemes - State powers conferred
                 on Commonwealth

          7.2.4 Summary
    7.3 Cross jurisdictional issues
          7.3.1 Minimal prospect of uniform State/Territory laws
          7.3.2 Jurisdiction in which offence occurs
          7.3.3 Inconsistency with other Australian jurisdictions' laws
8. Classification issues
    8.1 Inadequacy of OFLC Classification Procedures
          8.1.1 Classification of "Internet Content" not provided
          8.1.2 No procedure for classifying dynamic web sites
          8.1.3 Prior classification no guarantee against conviction
          8.1.4 Exorbitant fees for classification
    8.2 Application of movie/film classification guidelines to text
    8.3 Material Classified R
    8.4 Material Classified X
    8.5 Material Refused Classification (RC)
9. Applicability issues
    9.1 Drafting error enables prosecution of persons intended to be
         exempt

    9.2 Non-exclusive application of Part/potential unintended
         consequences

          9.2.1 Prosecution of Librarians, Teachers, Internet Cafes
          9.2.2 Prosecution of Parents and Guardians
          9.2.3 Prosecution for Sale of Unclassified Material, e.g. newspaper
                 articles, online

10. Restricted Access Systems
    10.1 Availability and Suitability of Systems
    10.2 Privacy
    10.3 Ease of Finding Australian Content
    10.4 Effectiveness in Protecting Minors
11. Australia's International Obligations
12. Conclusion
13. Summary of Recommendations
14. References


1. Executive Summary

  1. The On-line Services section (Schedule 2) of the NSW Classification (Publications, Films and Computer Games) Enforcement Amendment Bill 2001 (hereinafter referred to as "the Bill") is profoundly flawed.
  2. Serious criminal justice issues arise, such that the Bill would require major amendments to ensure, at the least, that ordinary people in NSW who use the Internet to communicate are treated no less fairly under criminal law than offline publishers. (See Section 6).
  3. The Bill appears to lack constitutional validity. The co-operative classification scheme is arguably constitutionally invalid and the Bill confers additional functions on a Commonwealth agency in a manner that may not survive scrutiny. It is also doubtful the Bill is capable of operating concurrently and consistently with the C'th Broadcasting Services Act. (See Section 7.2).
  4. Many of the flaws in the Bill arise from the attempt to force Internet content into a censorship regime developed for an entirely different medium, that is commercial sale and exhibition of movies and videotapes.
  5. Although the NSW Government has stated that the bill "is based on the principle that any matter that is illegal or controlled offline should also be illegal or controlled online", in a number of ways the Bill criminalises material online that is quite legal offline. (See Section 6.1).
  6. The Bill makes it a criminal offence to make matter available to adults if it is unsuitable for minors. This is inconsistent with NSW law applicable to offline material, produces an anomaly in the laws relating to the communication of information, and sets an inappropriate balance between freedoms and controls. (See Section 6.1).
  7. In addition to web pages and other stored files, the Bill covers a range of conversational material, e.g. email sent to a Web-based discussion list or chat board, email sent to a mailing list that is archived on the Web (e.g. groups.yahoo.com), postings on Web-based chat boards, postings to newsgroups. (See Section 5).
  8. The Bill restricts provision of a wide range of material, not only images depicting sex or violence. "Matter unsuitable for minors" (i.e. is or would be classified "R") includes detailed textual information about aspects of adult life that are potentially disturbing to minors. During the three years ended June 2000, over 50% of films were classified unsuitable for minors ("R") by the OFLC because they contained "adult themes". "Adult themes" include, for example, "suicide, crime, corruption, marital problems, emotional trauma, drug and alcohol dependency, death and serious illness, racism, religious issues". Unless information on these types of topics contains "little or no detail and [is] generally brief" (as necessary for an MA classification) such information is likely to be classified R and the Internet user/content provider at risk of a maximum penalty under NSW criminal law of $5,500 (for individuals) or $11,000 (for corporations). (See Section 4.1).
  9. The Bill enables a prosecution to be commenced against an Internet user prior to the material at issue being classified, that is, even in situations when they have not made available illegal material. This is contrary to NSW law applicable to a proposed prosecution concerning offline material. (See Section 6.2).
  10. The Bill reverses the onus of proof in relation to access to material being restricted. This is unlike NSW law applicable to offline publications. (See Section 6.4).
  11. The Bill enables an Internet user to be held criminally liable for circumstances beyond their control, that is, the failure of security of their Internet Content Host/Internet Service Provider's system. Moreover, it is doubtful that a defendant could prove that access was subject to an approved restricted access system "at the time the matter was made available or supplied by the defendant". (See Section 6.4).
  12. The proposed law subjects ordinary people in NSW to criminal proceedings for failure to foresee the classification that "would be" granted to particular material by a non-unanimous decision of members of the Commonwealth Boards of the Office of Film and Literature Classification. (See Section 6.6).
  13. The Bill may apply to persons/circumstances intended to be exempt due to failure to word an exemption clause in a manner consistent with the offence clauses. (See Section 9.1).
  14. The Bill invites constant enquiry as to the particular State or Territory laws at issue as the Bill does not specify in which jurisdiction an offence (making available or supply) takes place, i.e. the location of: the host server; the content provider; or the person who downloads the material, each of which may be in different States. (See Section 7.3.2).
  15. The Bill restricts adults' communications more than laws applicable to online content in other Australian jurisdictions. (See Section 7.3.3).
  16. Information made publicly available by the OFLC and the Federal Attorney General to date shows that the OFLC does not provide a classification service for content on the Internet, nor a service by which online publishers (who wish to do so with intent of ensuring they will not infringe the law) can obtain a reliable classification at reasonable cost prior to making material available online. The inability of the OFLC to cheaply and reliably classify web site content shows that the NSW Parliament would be wrong to outsource its Internet censorship to the OFLC. (See Section 8.1).
  17. While it is a defence to a prosecution in the Bill for the defendant to prove that access to matter unsuitable for minors was subject to an approved restricted access system, such systems are administratively onerous to the extent that few Australian content hosts would be prepared to incur the costs involved in their setup and administration. The only approved system since 1999 is that of the ABA which is extraordinarily privacy intrusive, requiring users to provide personal identifying information that goes far beyond proof of age (credit card details or copies of birth certificates etc), while not meeting the objective of protecting children more effectively than standard restricted access systems presently in use. (See Section 6.9).
  18. The classification of online content as a "film" creates a number of serious anomalies and unintended consequences. If content providers can be successfully prosecuted for making available "films" that consist of text and static images (e.g. Web pages), then it appears under existing NSW Classification law librarians and teachers (and others) who manage or supervise premises containing computers connected to the Internet can be prosecuted for events beyond their ability to control. It also appears that NSW parents and guardians could be prosecuted in relation to inadvertently exhibiting films/web pages in their home that are or would be classified X or RC. (See Sections 7, 9.2).
  19. Because it is an offence in NSW (and in all States/Territories) to sell an unclassified film, newspaper publishers who presently sell electronic copies of archived newspaper articles online could be prosecuted. (See Section 9.2.3).
  20. It is unreasonable for the NSW Government to enter into Internet regulation intended to criminalise Australians based on a classification system designed for movies or publications. Applying guidelines for movies to written text on the Internet has the distinct potential to result in absurd prosecutions for making available online information in books and other publications that are not restricted off-line.
  21. The vague and subjective OFLC classification guidelines and associated uncertainty as to classification will chill online speech to a greater extent than probably intended by the NSW Government or Parliament. It is recommended that NSW legislators reject proposals to criminalise inability to foresee a non-unanimous decision of a small group of people, i.e. the members of the OFLC Classification Boards. (See Section 6.8).
  22. Offences relative to "matter unsuitable for minors" should be deleted from the Bill. Criminalising the making available of content that is or "would be" classified "R" will cripple the Australian content-hosting industry and adversely affect Australian content providers. There is no benefit in criminalising Australian content providers, or attempting to restrict content and conversation on the Australian Internet to that fit for a kindergarten, when similar material is and will remain readily available to children on overseas sites. (See Sections 4.1, 8.3).
  23. The Bill should not criminalise content providers who make available non-violent sexually explicit material to adults. There is substantial survey evidence that demonstrates that the majority of Australians do not agree that such material should be censored. Furthermore, such material is legally available to adults in NSW in the form of Restricted publications. The treatment of X classified material (i.e. non-violent sexually explicit material involving consenting adults) and RC classified material (which includes "depictions of child sexual abuse or any other exploitative or offensive depiction involving a person who is or who likes like a child under 16") as if they were equally offensive is an illogical and transparently emotive proposition. EFA has no argument with prosecuting the publication of material showing sexual abuse of children and this can already be done under existing law. (See Sections 4.2, 8.4).
  24. The reference to advertisements should be deleted from proposed legislation. It criminalises activity that is legal offline. Attempts to criminalise advertisements on-line are very likely to result in a raft of undesirable and unintended consequences, ranging from well-intentioned content providers becoming victims of overzealous regulation to adversely affecting the development of the Australian on-line economy. (See Section 6.1.3)
  25. The proposed legislation contravenes Australia's international obligations as a signatory to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR). The proposed legislation will not protect children, but it will infringe adults' rights to freedom of speech and the legislated principle in Australian law that adults should be free to read, see and hear what they want. (See Section 10)
  26. Legislative attempts to further regulate content on the world-wide Internet should be abandoned. Publication of globally agreed illegal material such as child pornography can already be prosecuted under existing law, and regulations concerning contentious material are no longer appropriate in a world where cultural differences cannot be easily reconciled.


2. Introduction

The On-line Services section (Schedule 2) of the NSW Classification (Publications, Films and Computer Games) Enforcement Amendment Bill 2001 (hereinafter referred to as "the Bill") is a profoundly flawed document.

The Bill burdens freedom of communication online far more than offline. It treats the many ordinary people who use the Internet to communicate, as well as commercial online publishers, far less justly and fairly under criminal law than is applicable to speech and distribution of information offline. It demonstrates a clear objective to apply more restrictive censorship law to material online than applies offline, notwithstanding that it is claimed in the Second Reading Speech (but the provisions of the Bill show otherwise) that the Bill "is based on the principle that any matter that is illegal or controlled offline should also be illegal or controlled online".

The Bill is not reasonably appropriate and adapted to serve a legitimate end. EFA recognises that, unquestionably, there is much material on the world-wide Internet that is unsuitable for children and that it is desirable to protect children from exposure to such material. However, this Bill will not achieve that end. It will make no difference whatsoever to the ease with which minors may inadvertently (or intentionally) access "matter unsuitable for minors" or "objectionable matter" on the global Internet. Nor will it protect adults from unintentionally (or otherwise) accessing material that some adults find offensive.

This Bill will not protect children, but it will destroy their future. It fails to recognise that children become adults (it aims to restrict information made available by Australian adults for Australian adults to that fit for children) and disadvantages Australian participation in the global economy.

The Bill appears to lack constitutional validity. The co-operative classification scheme is arguably constitutionally invalid and the Bill confers additional functions on a Commonwealth agency in a manner that may not survive scrutiny. It is also doubtful the Bill is capable of operating concurrently and consistently with the C'th Broadcasting Services Act.

EFA strongly recommends that the Bill be abandoned. More detailed information on the reasons for this recommendation are contained later in this document.

EFA observes that the Bill was passed by both houses of the NSW Parliament without the slightest indication of an appropriate level of parliamentary scrutiny. EFA shares the view of the NSW Standing Committee on Law and Justice as expressed in their October 2001 Report on A NSW Bill of Rights:

"The Committee concluded that Parliament has a responsibility to protect human rights. This responsibility is not always exercised effectively. The NSW Parliament has at times been responsible for...passing legislation which breaches human rights standards. Legislation is prepared within bureaucracies without any measurement against human rights standards, and then passes through Parliament again without any, or at most ad hoc, discussion of such standards." (Ref: Clause 8.1 of the Committee's Report).

EFA commends the NSW Government, and particularly the Attorney-General, for their willingness to ask the Standing Committee on Social Issues to inquire into the provisions of the Bill, notwithstanding that the Bill had already been passed by the Parliament. EFA also commends the Committee for its willingness to undertake an inquiry into the Bill.

EFA hopes that the outcome of the Committee's inquiry will be recognition by the Committee and subsequently the NSW Government and Parliament that this Bill is not reasonably appropriate and adapted to serve a legitimate end.

EFA fears, however, that the inquiry may serve no purpose other than to further demonstrate the danger to Internet users' rights and freedom from legislators who lack adequate knowledge and understanding of the communications medium (and associated technology) they seek to regulate.

In the event that the Committee, Government and Parliament fail to comprehend the overall flaws in the proposed legislation, at the very least, serious criminal justice issues must be addressed and resolved to minimise the extent to which ordinary people in NSW who use the Internet to communicate will be treated less fairly under criminal law than offline publishers.

The remainder of this document aims to explain the problems with the proposed legislation and in some areas recommends specific amendments intended to address the worst excesses of the Bill. EFA emphasises, however, that even if all recommendations herein were implemented, these would not result in legislation that is reasonably appropriate and adapted to serve a legitimate end.

(Note: Throughout this document references to "the Bill" refer to Schedule 2 of the Bill which became unproclaimed Act No. 95 of 2001 after the Committee was requested to inquire into "the Bill". References herein to "the existing Act" refer to the pre-existing NSW Classification (Publications, Films and Computer Games) Act 1995.)

About EFA

Electronic Frontiers Australia Inc. (EFA) is a non-profit national organisation representing Internet users concerned with on-line freedoms and rights. EFA was formed in January 1994 and was incorporated under law in May 1994.

EFA's major goals are to advocate the amendment of laws and regulations in Australia and elsewhere (both current and proposed) which restrict free speech, and to educate the community at large about the social, political and civil liberties issues involved in the use of computer based communications systems.

EFA is independent of government and commerce and is funded by membership subscriptions and donations from individuals and organisations with an altruistic interest in promoting civil liberties. EFA members come from all parts of Australia and from diverse backgrounds.


3. Background to the Bill

The Online Services section of the Bill is substantially the same as draft model national legislation issued by several State and Territory Attorneys General for public comment in August 1999. At that time, EFA received a letter from the then NSW Attorney General inviting comments and responded raising a number of criminal justice and technological issues. Although the current Bill contains a few very minor improvements over the initial draft model, it appears that legislative drafters have not understood a number of other important matters raised.

Further, the draft model "national" legislation was prepared prior to the High Court decision in Queen v Hughes regarding co-operative schemes and it appears the potential ramifications of that decision have not been considered by the drafters of the Bill.

In late 2001, a Bill was tabled in South Australian Parliament that contains the same provisions as the Online Services section of the NSW Bill. The SA Bill was referred to a Select Committee, which was chaired by the SA Attorney General. The Committee recommended amendments in its report of 30 October 2001, and the SA Bill was amended accordingly. However, it should be noted that the amended SA Bill had not been passed by both Houses of the SA Parliament prior to the date of the next SA election being announced in January 2002.

The two flaws recognised by the SA Committee also exist in the NSW Bill, one of which EFA raised in its submission to the NSW, SA and other State/Territory Attorneys General on the draft model legislation in 1999. However, the SA Committee's report indicates they were not familiar with existing SA laws relative to offline publications nor technological matters. Hence the SA Bill amendments did not resolve other serious criminal justice issues.

NSW Government/Parliament has the opportunity reject unjust, unworkable and ineffective legislation, or at the least, introduce amended legislation that is less unjust and unfair.


4. Breadth of information covered

4.1 Matter unsuitable for minors

The Bill covers a wide range of information, not only material involving sex or violence.

"Matter unsuitable for minors" as defined in the Bill (i.e. material that is or would be classified "R") includes textual information and discussions about aspects of adult life that are potentially disturbing to minors.

During the three years ended June 2000, over 50% of films were classified unsuitable for minors ("R") by the OFLC because they contained "adult themes", not because they contained sex, violence or coarse language.

According to the OFLC Classification Guidelines, "adult themes" include, for example,

"suicide, crime, corruption, marital problems, emotional trauma, drug and alcohol dependency, death and serious illness, racism, religious issues".

Unless information on these types of topics contains "little or no detail and [is] generally brief" (as necessary for an MA classification) such information is likely to be classified R and the Internet user/ content provider at risk of a maximum penalty under NSW criminal law of $5,500 (for individuals) or $11,000 (for corporations).

The following statistics showing the reasons for R classifications have been extracted from the tables in OFLC Annual Reports for the three years ended June 2000 (statistics were not included in the OFLC Annual Report for the year ended June 2001):

Table 1: Applications - by Code Reasons for Classification
R18+ Sex % Violence % Language % Other % Total %
99/00 Films 16.67 44.44 0.00 38.89 100
Videos 20.14 20.81 3.35 55.70 100
98/99 Films 24.14 20.69 3.45 51.72 100
Videos 32.43 16.21 2.70 48.65 100
97/98 Films 8.51 21.28 2.13 68.09 100
Videos 13.37 12.73 2.55 71.34 100

The legislation, which treats textual information as if it were an entertainment movie, will restrict provision by individuals and corporations in NSW (and possibly some resident elsewhere in Australia) of a broad range of socially valuable information on the Internet including:

  • News and current affairs
  • Medical and public health information
  • Self-help/support discussion groups
  • Discussion on social and political issues
  • Art works
  • Court judgments and transcripts
  • etc.

EFA does not contend that the proposed legislation will criminalise online provision of all information involving "adult themes", but it will make it a criminal offence to provide detailed and/or non-brief information, including information that is not illegal in offline publications.

Moreover, the vague and subjective OFLC classification guidelines and associated uncertainty as to classification will chill online speech to a greater extent than probably intended by the legislature. Many content providers, which include persons merely discussing matters in online discussion groups, will err on the side of caution, rather than risk criminal prosecution.

Further information is included in Section 8.3 - Material Classified R below.

4.2 Objectionable matter ("X" and "RC")

EFA submits that material classified "X" and that classified "RC" should not be treated in criminal law as if it were the same.

Although there appears to be a belief that material classified X under Australian law contains violence, this is not correct. Further since the draft model legislation was issued for public comment by the NSW Attorney General in 1999, the material allowed in the "X" classification has been further restricted to ban the depiction of various legal sexual activities between consenting adults.

The treatment of X classified material (i.e. non-violent sexually explicit material involving consenting adults) and RC classified material (which includes "depictions of child sexual abuse or any other exploitative or offensive depiction involving a person who is or who likes like a child under 16") as if they were equally offensive is an illogical and transparently emotive proposition. EFA has no argument with prosecuting the publication of material showing sexual abuse of children and this can already be done under existing law. In the event that NSW law enforcement authorities consider there is any enforcement difficulty in relation to such material made available on the Internet, this is a matter for law reform of an appropriately adapted nature. It is not necessary to criminalise online provision of a vast range of completely different material, as does the Bill.

Moreover, it is obvious to anyone who chooses to investigate that NSW law enforcement authorities are unable to prevent the ready availability and sale of X-classified videos from shops in NSW. Effectively enforcing the proposed online law will be even more difficult and further bring NSW law enforcement capabilities into disrepute.

Further, under the Internet censorship laws of Western Australia and the Northern Territory that have been in place since 1996, it is not illegal to make material classified X available to adults online. It seems unlikely that the A.C.T. will outlaw provision of X classified material to adults online.

EFA submits that the NSW Parliament would be better advised to regulate the provision of X material online rather than attempt to ban it. Further information is provided in Section 8.4 - Material Classified X.

In relation to material classified RC, the application of guidelines designed for movies to textual and conversational material on the Internet is likely to result in criminal prosecutions in relation to material that would not be suitable in a movie, but may be harmless in context of provision of textual information on the Internet. Further information is provided in Section 8.5 - Material Classified RC.


5. Types of Internet content covered

5.1 Text on Web pages and conversational material

Although the use of the term "film" has caused some people to believe that the Bill does not cover text, the Bill applies to both text and images (both static and moving). The relevant definitions in the Classification Act are:

"film includes a cinematograph film, a slide, video tape and video disc and any other form of recording from which a visual image, including a computer generated image, can be produced,..."

"computer generated image means an image (including an image in the form of text) produced by use of a computer on a computer monitor, television screen, liquid crystal display or similar medium from electronically recorded data."

It is thus claimed by legislative drafters that because an email message or a web page, that contains only text, produces a "visual image" on a computer monitor, it is therefore a 'film'. As a result, text in on a web page is classified as if it were an entertainment movie, that is, using the same rules/classification guidelines as those applied to cinema films and videos.

5.2 Email

There is a fairly commonly held, but mistaken, impression that all email is excluded from coverage by the Bill. This may arise from the statement in the Second Reading that:

"[The Bill] is not intended to catch material that is not stored and not generally available on the Internet. Hence, it does not apply to email or to real-time Internet chat." [emphasis added]

However, the Bill does apply to many email messages.

Although the Bill does not make it a criminal offence to send an email message containing "matter unsuitable for minors" to a minor, it does make it a criminal offence to send an email containing "matter unsuitable for minors" to adults in some circumstances. In this regard, Clause 45D(1) makes it a prima facie criminal offence to send an email message containing "matter unsuitable for minors" to an email discussion list that is archived on the Web, regardless of whether all subscribers to the mailing list are adults and access to the archive is subject to a restricted access system. Furthermore, it appears that sending such material by email to a discussion list that has only adult subscribers and that is not archived on the Web may also be an offence.

In order to understand how the above situation arises and the extent to which email is covered, it is necessary to refer to both the Bill and Commonwealth legislation.

The Bill contains the following definition:

"Internet content has the same meaning as it has in Schedule 5 to the Broadcasting Services Act 1992 of the Commonwealth. ... Note: Internet content...is defined so as...not to include ordinary electronic mail".

Hence whether a particular email message is covered depends on whether it is "ordinary electronic mail" which is not defined in the Bill. This term has been extracted from the Commonwealth Broadcasting Services Act 1992 ("the BSA)".

The BSA does not define "ordinary electronic mail" either, other than to state that it "does not include a posting to a newsgroup", although the word "newsgroup" is also not defined. Reference to the revised Explanatory Memorandum ("the EM") to the Broadcasting Services Amendment (Online Services) Bill 1999 provides an indication of the Commonwealth's intent. The EM states:

"The exclusion of 'ordinary electronic mail' from the definition of Internet content is intended to make it clear that the exclusion only applies to what an ordinary user of the Internet would regard as being e- mail, and that the exclusion does not apply to other forms of postings of material, such as postings to newsgroups. The term is also intended to minimise the scope for technical arguments about the 'outer boundaries' of the term 'e-mail' within the Internet community. The definition of 'ordinary electronic mail' makes it clear that the term will not include a posting to a newsgroup. These provisions are intended to ensure that personal e-mail is not caught by the definition of 'Internet content'.

Examples of Internet content include pages on the World Wide Web, archived mailing list messages, material available for general access from usenet news groups and information available from databases."

It appears highly doubtful that Commonwealth legislative drafters understand what "ordinary" Internet users "regard as being email".

Most, probably all, Internet users who send an email message to a group of people on a discussion mailing list regard such messages as being email. However, it appears the Commonwealth considers email is only email if it is "personal" email. Unless the NSW legislature amends the Bill to clearly define "ordinary electronic mail", it appears it will be a matter for the courts to determine whether an email message sent to a group of people is "personal" and hence whether it is exempt or not.

Nevertheless, it is clear that email sent to a Web-based discussion list or chat board, and email sent and received by email to a mailing list that is archived on the Web, is covered by the proposed legislation.

It is disturbing that the Bill places participants in email discussion lists at risk of criminal proceedings for events beyond their control. On some email lists, rogue subscribers have created an archive of email messages to the list on the Web without the permission or knowledge of the administrator of the list, nor of other participants in the discussion group. Postings to email discussion groups can also be gatewayed/distributed automatically to newsgroups without the permission or knowledge of the email group's administrator or other participants. For example, this occurred with the Oz-ISP email discussion list in January 1998 when it was discovered by a participant that all postings to the email group were being gatewayed to a newsgroup and also subsequently archived on the Web by the DejaNews service.

5.3 Conversations in newsgroups

The specific exclusion of "newsgroups" from "ordinary electronic email" (see earlier herein) leaves no doubt that postings to "newsgroups" are covered by the Bill.

While the term "newsgroup" is not defined in the Bill or the BSA, it seems this would include, at the least, postings to Usenet newsgroups whether or not the particular newsgroup is archived on the Web.

However, as Usenet is a world wide network posted to by persons all over the world, the Bill will not have the slightest affect on the availability of material unsuitable for minors in Usenet newsgroups. In this regard, it should be noted that "matter unsuitable for minors" as defined in the Bill is protected speech in the USA. Further, neither the UK nor Canada have made it a criminal offence to post such material to newsgroups (EFA is not aware of any Western democracy that has).

5.4 Conversations in chat rooms and on chat and bulletin boards

Although it has been stated and/or implied from time to time that discussions in online "chat" facilities are exempt, only a narrow range of "chat" facilities are exempt.

Some types of chat facilities are exempt because the definition of "Internet content" does not cover material that is not kept on a data storage device accessible using the Internet. Hence "real-time" chat, such as Internet Relay Chat (IRC) and voice over Internet services are exempt (although not if archived logs/recordings of the chat sessions are accessible using the Internet).

However, other "chat" facilities such as Web-hosted chat rooms, chat boards and bulletin boards are not exempt.

5.5 Summary of restriction on online discussion between adults

The Bill criminalises the on-line equivalents of conversations among adults at a private or public meeting, in a pub, on a street corner, or at the local shopping centre when such conversation includes "matter unsuitable for minors". Posting material unsuitable for minors to a newsgroup, or any chat/discussion forum that is stored on the Web (e.g. email discussion lists that are archived) is a criminal offence under the Bill, whether or not the material is made available to minors.

The Bill will not, however, have any effect on the availability of conversational material that is unsuitable for minors through third-party off-shore ftp and web-based archives of discussion groups, use of off-shore web-based chat rooms and chat boards, etc.

Furthermore, the Bill does not make it a criminal offence to intentionally and knowingly send "objectionable matter" to a minor by email.

As drafted, the intent of the Bill is clearly to criminalise conversations among adults involving matter unsuitable for minors, not to protect minors from matter unsuitable for them. If this is not the intent of the NSW legislature, significant amendments to the Bill are necessary.

EFA submits that the application of guidelines designed for movies to conversations on Australian hosted chat/discussion facilities is a pointless restriction on freedom of speech and should be deleted from the Bill.

5.6 Comparison with 1999 draft model prepared for inclusion in NSW Act

The draft model national legislation issued by the NSW Attorney-General, and other State/Territory A-Gs, for public comment in August 1999, was less restrictive of adult conversations online.

The draft model stated that it was "in the form of a Part suitable for inclusion in the Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW)" and included the following:

2 (2) Nothing in this Part makes it an offence to supply objectionable matter or matter unsuitable for minors by means of an on-line service:
(a) to any person in the form of ordinary electronic mail (within the meaning of the Broadcasting Services Act 1992 of the Commonwealth), or
(b) to subscribers of, or participants in, a chat or discussion group, or
(c) to any other person, or class of persons, prescribed in the regulations.

The above clause is not included in the Bill. It has apparently been deleted either by decision of the NSW Government, or decision of the Standing Committee of Censorship Ministers. (A report on the outcome of the 1999 public consultation process on the draft model has not been made publicly available.)

EFA submits that a substantially similar provision should be incorporated in the proposed NSW law. However, the exemption in the above provision for "ordinary electronic mail (within the meaning of the Broadcasting Services Act 1992 of the Commonwealth)" does not include email messages sent to discussion lists and postings to newsgroups. The provision should be amended to ensure that all email and newsgroup postings are also exempt.

Recommendation:

That the Bill be amended to exclude criminal offences for making available textual information via email, mailing lists, newsgroups, chat boards and bulletin boards, whether archived/stored on the Internet or not.

In the event NSW legislators deem it essential to cover online discussion facilities to some extent, at the least, offences relative to "matter unsuitable for minors" should be deleted. As discussed below, this category covers a broad range of socially valuable information. Discussion and conversation should not be treated as if it were an entertainment movie.


6. Criminal justice issues and inconsistency with NSW offline laws

6.1 Material legal offline to be illegal online

EFA submits that what is legal to make available to adults offline should be legal to make available to adults online. Moreover, we note that the Second Reading Speech states that "The bill is based on the principle that any matter that is illegal or controlled offline should also be illegal or controlled online". However, in a number of instances this principle has not been implemented in the Bill, as detailed below.

6.1.1 Criminal offence to provide "R" material to adults online

Clause 45D(1) states:

"A person must not, by means of an on-line service, make available, or supply, to another person, any matter unsuitable for minors..."

This clause makes it a prima facie criminal offence to make material available to adults if it is unsuitable for minors, that is, whether or not access to the content is subject to an approved restricted access system and whether or not such material is provided to a minor.

This is contrary to NSW law applicable to offline material under which it is not an offence to make R-classified material available to adults.

While the Bill provides a defence, this places online publishers, unlike offline publishers, in a situation that is tantamount to guilty until proven innocent. In addition, there are criminal justice issues arising from the phrasing of the defence as detailed in Sections 6.4 and Sections 6.5 below.

Furthermore, Clause 45D(1) seeks to restrict adults' communications more than laws applicable to online content in Victoria, Western Australia and the North Territory. These jurisdictions' laws do not make it an offence to make R classified material available to another adult, as distinct from making it available to a minor. In conjunction with other aspects of the Bill, this results in cross-jurisdictional issues and uncertainty relative to enforcement of the law (see Section 7 - Cross Jurisdictional Issues).

Clause 45D(1) also unduly exceeds the claimed intent of complementing Commonwealth legislation under which it is not an offence to make available material that is subject to a restricted access system (see Section 7.3.3).

For reasons detailed later herein, EFA considers legislation criminalising or otherwise regulating the making available of "matter unsuitable for minors" online is unreasonable, unworkable and will have no effect whatsoever on the ease with which minors can be, accidentally or otherwise, exposed to such material on the world wide Internet. However, if NSW lawmakers are determined to criminalise provision of this material, the offence should be limited to provision of material to a minor.

Recommendation:
If the proposed NSW legislation is to remain in a form that criminalises making available "matter unsuitable for minors" on the world wide Internet:

That in Clause 45D(1) the words "to another person" be replaced with "to a minor", to ensure that content providers will not find themselves subject to criminal proceedings for making available matter unsuitable for minors to adults.

6.1.2 Criminal offence to provide "Category 2" Publications to adults online

Clause 45C states:

A person must not, by means of an on-line service, make available, or supply, to another person, objectionable matter...

This clause makes it a prima facie criminal offence to make material available to adults that is legal to sell to adults in shops in NSW, without even providing a defence that access to the material was subject to a restricted access system.

This situation arises because classification guidelines developed for the combination of moving images and sound (movies) are applied to text and static images (publications) on the Internet. Much of the text and images legal in Category 2 Restricted publications would be classified X (non-violent sexually explicit material) under film guidelines and hence be illegal to make available to adults online under the NSW proposed law.

Recommendation:
That Clause 45C, or the definition of "objectionable matter", be amended (or other changes made) so that material that is legal to sell from shops in NSW is also legal to make available to adults online.

6.1.3 Criminal offence to provide advertisements suitable for minors

The Bill makes it a criminal offence to make available online advertisements that do not contain any material unsuitable for minors and that are not illegal to screen on free to air television.

The definition of "matter unsuitable for minors" in the Bill states:

"matter unsuitable for minors" means Internet content consisting of...an advertisement for [a film that is, or would be, classified R] consisting of or containing an extract or sample from the film comprising moving images"

Hence, it will be a criminal offence to make available an advertisement for an R classified film that includes moving images even if the advertisement contains no material unsuitable for minors. However, an advertisement that comprises static images from the film would not be an illegal advertisement even if the non-moving images were unsuitable for minors (although it appears that the web page containing such images could be deemed to be matter unsuitable for minors and so illegal in any case). Apparently the purpose of the reference to advertisements is to prohibit advertisements that comprise moving images, including where the content of the advertisement is suitable for minors, but not to prohibit advertisements that contain text and static images. Hence, in determining whether an advertisement is illegal or not, the first issue to be considered is whether it contains moving images, not whether it contains material unsuitable for minors.

Films classified R are advertised off-line on free-to-air television. They are also broadcast on free-to-air television after cuts to comply with broadcasting law. Television broadcasters are not required to put in place "restricted access systems" preventing minors from viewing an advertisement, nor a modified version of the film. Yet Village Roadshow and Hoyts, for example, will commit an offence in making available on their Web site exactly the same advertisement that can be legally broadcast on television. Television broadcasters will be in breach of the law if they place an advertisement on their web site for a film that they are able to broadcast on television. Obviously, this legislation will criminalise on-line provision of material that is not illegal to make available to minors or adults off-line.

Further item (c) of the "objectionable matter" definition enables prosecution to commence in relation to an advertisement, not only prior to the advertisement being classified, but also in situations where it advertises material that has also not been classified but is alleged "would be" classified X or Refused Classification by the OFLC. See Section 6.3 for further information.

Attempts to criminalise advertisements on-line are very likely to result in a raft of undesirable and unintended consequences, ranging from well-intentioned content providers becoming victims of overzealous regulation to adversely affecting the development of the Australian on-line economy. The question of whether a web page hyperlink to another web page might constitute an advertisement also needs to be addressed.

EFA submits that the definition of either "Internet content" or "film" is adequate, there is no need to refer to advertisements specifically.

Recommendation:
That the references to advertisements be deleted from Schedule 2 of the Bill.
OR, if the legislature is determined to refer to "advertisements":
That the definition of "matter unsuitable for minors" in the Bill be amended by adding after "comprising moving images" the words "that are unsuitable for minors", to avoid proscribing making available advertisements online that do not contain any material unsuitable for minors.

6.2 Criminal proceedings commence prior to classification, unlike offline

The Bill enables commencement of criminal proceedings against an Internet user prior to classification of content, i.e. in situations even where material is not subsequently classified "unsuitable for minors" or "objectionable". This situation arises because the offence provisions in the Bill refer to material that not only "is" but "would be" classified in a particular way.

This is contrary to NSW law applicable to offline material. Clause 59 of the existing NSW Classification Act "Commencement of proceedings" states that prosecution proceedings for an offence under the Act are not to be commenced until "the film, publication or computer game has been classified". However, the Bill does not include an amendment to Clause 59 to cover Internet content, nor is a similar clause included in the Online Services section of the Bill.

Police are not specialists or even trained in interpretation of classification guidelines, nor should they be expected to be. The role of the police is to enforce the law, not guess what it is. While it may be argued that police would not commence proceedings against an Internet user unless they expected the OFLC to rule that particular content "would be" classified R, X or RC, no useful purpose is achieved by enabling the possibility of police commencing criminal prosecution on the basis of a wrong guess as to the classification.

There is no justifiable reason for treating online publishers less fairly under criminal law than offline publishers. EFA submits that it would be more logical to enable criminal proceedings to be commenced against an offline publisher prior to classification. In the off-line environment, movie/film, video and computer game distributors are required by law to obtain a classification from the OFLC because it is illegal to sell or exhibit an "unclassified film". Penalties operate on a scale dependent on the subsequent classification decision of the OFLC Classification Board. There is, for example, a penalty for selling or exhibiting an unclassified film even if it is subsequently classified "G". Once a classification is granted, the distributor/ seller/ exhibitor has an absolute defence to criminal liability for distribution of the material, provided they comply with any restrictions on distribution relative to the classification.

In the off-line environment, it may therefore be considered reasonable to prosecute distributors in relation to sale, advertising, exhibition and distribution of material that "would be" given a particular classification. They are required, by law, to obtain a classification and can thus reasonably be expected to know that they are engaged in a criminal act in distributing films, videos and computer games that have not been classified. However, the NSW law applicable to offline publishers clearly states that criminal proceedings may not be commenced until material has been classified.

In the online context there is no legislative intent to require persons who provide material free-of-charge on the Internet to firstly obtain an OFLC classification. It is therefore unjust and unfair to enable commencement of criminal proceedings against online publishers prior to an OFLC classification decision evidencing that the material at issue was illegal to make available online. Doing so has the potential to traumatise ordinary Australians and their families who have committed no crime.

Recommendation:
That Clause 59 of the existing Act be amended by insertion of the words "Internet content" in every instance where the words "film, publication or computer game" presently appear
OR
That a new clause be inserted in Schedule 2 of the Bill, similar to Clause 59, to ensure prosecution proceedings in relation to alleged offences of making available various "matter" online cannot be commenced until the matter has been classified.

6.3 Criminal conviction enabled without classification of material

The Bill enables a content provider to be convicted for making available an advertisement without either the advertisement, or the material that is advertised, being classified by the OFLC. This situation arises as a result of the inadequate definition of "objectionable matter", that is:

objectionable matter means Internet content consisting of:
(a) a film that is classified X, or that would, if classified, be classified X; or
(b) a film or computer game that is classified RC or that would, if classified, be classified RC; or
(c) an advertisement for a film or computer game referred to in paragraph (a) or (b); or
(d) an advertisement that has been, or would be, refused approval under section 29(4) of the Commonwealth Act.

Item (c) above states that objectionable matter includes an advertisement for a film or computer game that would, if classified, be classified X or RC. However, the Bill does not require law enforcement authorities or a court to obtain a classification from the OFLC as to whether the material advertised actually would be classified X or RC.

EFA submits that the Bill should be amended to ensure that a conviction cannot occur on the basis of a mere allegation and/or guess that the material advertised "would be" given a particular classification by the OFLC.

Recommendation:

That Item (c) of the definition of "objectionable material" be replaced with:

"an advertisement for a film or computer game that is classified X or RC"

6.4 Reversal of the onus of proof, unlike offline

Clause 45D(2) states:

"it is a defence to a prosecution for the defendant to prove that access to the matter unsuitable for minors was subject to an approved restricted access system..."
This unjustifiably reverses the onus of proof. Instead of the prosecution being required to prove an offence has been committed, the content provider is required to prove their innocence. This is contrary to the provisions of the existing NSW Classification Act relative to distribution of material offline. For example, Clause 21(1) of the NSW Classification Act states:

"A publication classified Category 2 restricted must not be:
(a) displayed except in a restricted publications area".

In other words, the law applicable to offline distributors/sellers does not make it prima facie offence to display a Category 2 publication and then provide a defence that it was in a restricted publications area.

EFA submits that, like the law relative to offline material, the onus ought to be on the prosecution to prove that access to online material was not restricted, not on the defendant to prove the reverse.

Furthermore, the defence enables the conviction of an Internet content provider in circumstances beyond their control, as detailed below.

6.5 Conviction enabled in circumstances beyond the control of the accused

The defence in Clause 45D(2) enables the conviction of an Internet content provider in circumstances beyond their control. For example, when the ISP/content host's web server equipment (that hosts the content provider's material) has suffered a security failure as a result of incompetence/mistake on the part of the ISP/ICH's staff or criminals breaking into their system and altering security configurations.

Furthermore, it is doubtful that a defendant could prove that access was subject to an approved restricted access system "at the time the matter was made available or supplied by the defendant". It is not clear whether "at the time" means at the time the material was initially made available on-line, or whether material is deemed to be "made available or supplied" at the time it is accessed by a person who subsequently notifies law enforcement authorities.

Moreover, there is no obvious means by which a content provider could prove a restricted access system was in place at any particular time in the past. What will constitute acceptable proof that a restricted access system was in place? Will content providers need to obtain, at the time they first make the material available, a sworn affidavit from their ICH/ISP, or from the ABA, or from a yet to be specified entity? Will they need to obtain a fresh affidavit each day, lest the ICH/ISP's access security system subsequently fails due to technical inefficiency or error on the part of the ICH/ISP, or as a result of criminals breaking into the ICH/ISP's system, or any other reason?

This provision makes ordinary people in NSW who make content available online at the risk of criminal penalties for events beyond their control. It is unjust to hold content providers liable for the technical operations of their ICH/ISP's servers and systems. Content providers who depend on their ICH/ISP to implement password security have no control whatsoever over whether their ICH/ISP maintains the security of such a restricted access system.

This criminal justice issue was acknowledged by the South Australian Select Committee and the SA Bill has been amended as recommended by the Committee (but had not been passed by the SA House of Assembly as at January 2002).

EFA considers the clause recommended by the SA Committee is a substantial improvement over the original clause. The amended SA clause is detailed in the recommendation below.

Recommendation:

If the proposed NSW legislation is to remain in a form that criminalises making available "matter unsuitable for minors" on the world wide Internet and reverses the onus of proof in relation to the defence, that Clause 45D(2) be deleted and replaced with the following:

"(2) It is a defence to a prosecution for an offence against this section to prove that -
(a) an approved restricted access system operated, at the time of the offence, in relation to access by means of the online service to the matter unsuitable for minors; or
(b) the defendant intended, and had taken reasonable steps to ensure, that such a system would so operate and any failure of the system to so operate did not result from any act or omission of the defendant".

It should be noted, however, that the above clause may not be adequate because the NSW Bill does not make clear what is meant by "at the time of the offence". This issue, as discussed above, should be addressed and resolved.

6.6 Conviction enabled without unanimous (jury) agreement on classification

Under the proposed law the OFLC Classification Board effectively becomes a jury for the purpose of criminal law although without "beyond reasonable doubt" criteria being applied to decisions, and without the need for unanimity. Their non-unanimous classification decisions are prima facie evidence of the classification for the purpose of criminal conviction. Neither a jury nor a judge is empowered to consider whether the material should have been given the classification the majority of the Board decided on.

While an appeal, i.e. an application for judicial review, can be made to the Federal Court, the Court is not empowered to assess the classification of the material. The Classification Review Board's opinion on a classification is final. The Court is solely empowered to decide whether the Board has acted in accordance with the law. As stated by Justice French, in his decision in the case of Michael Brown & Ors v Members of the Classification Review Board of the Office of Film and Literature [1998] 319 FCA (24 March 1998):

"The evaluation of a publication is a matter for the Board in the discharge of its duties under the Act. The function of this Court upon an application for judicial review is to decide whether the Board has acted in accordance with the law. It is not to substitute its own assessment of the publication for that of the Board"
Furthermore, in cases where content providers have placed unclassified material online, the Classification Board will be making a classification assessment in the knowledge that their decision makes the difference between whether or not a person will be charged with a criminal offence. This is not the case when they classify offline movies and videos because it is an offence to sell/exhibit any unclassified film or video offline.

The proposed law subjects ordinary people in NSW to criminal proceedings for failure to foresee the classification that "would be" granted to particular material by members of the Boards of the Office of Film and Literature Classification (OFLC). Decisions of the OFLC Classification Boards are not required to be unanimous and often are not. The OFLC Board members disagree over the boundary between MA and R material, as do many other members of the Australian community. In addition, the Classification Review Board from time to time disagrees with a classification granted by the Classification Board.

Given individual members of these Boards, trained in interpreting the Classification Acts, the National Classification Code and the Classification Guidelines are unable to agree on a classification, it is unjust to enable criminal proceedings against ordinary people for failure to correctly foresee the decision of the OFLC Board members.

Information on the difficulties inherent in attempting to assess what classification "would be" given to particular material by the OFLC is provided in Section 6.8 below.

6.7 Cost prohibitive to obtain classification pre-publication due to Commonwealth law

The Bill requires an Internet user, who wishes to be sure their content will not breach the law, to pay approximately $700 for classification of one page of text in electronic format, compared to $130 for a page to be published offline on paper. This situation arises because the Commonwealth has not prescribed classification fees specific to Internet content and the Federal Attorney General has stated that the OFLC will charge the same fees for a web page of text as for a cinema film or videotape. Further, in the case of a successful criminal prosecution, the court may order the online content provider to pay (reimburse police costs) an OFLC classification fee for a 'film' of some $700 in addition to the penalty. In the case of a web page consisting of three images and text, it appears the definition of 'film' would enable the OFLC to charge some $2,800, i.e. for four 'films'. This is unjust since the OFLC classification fee for an entire offline magazine is $130. See also Section 8 below.

6.8 Offence Element: Recklessness

The usefulness of the "recklessness" element of the offence in ensuring a well-intentioned online publisher will not be convicted is highly doubtful because the matter of how any particular information would be classified is a matter of opinion, a value judgement, it is not a matter of fact.

The offence provisions (Clauses 45C and 45D) state:

"A person must not, by means of an on-line service, make available, or supply, to another person, [objectionable matter/or/any matter unsuitable for minors]:
(a) knowing that it is [objectionable matter/or/matter unsuitable for minors], or
(b) being reckless as to whether it is [objectionable matter/or/matter unsuitable for minors]."

and "recklessness" is defined (Clause 45E) as follows:

"(1) A person is reckless as to whether matter is objectionable matter or matter unsuitable for minors:
(a) if the person is aware of a substantial risk that the matter is objectionable matter or matter unsuitable for minors, and
(b) that having regard to the circumstances known to the person, it is unjustifiable to take the risk.
(2) The question of whether taking a risk is unjustifiable is one of fact."

The recklessness element places content providers at risk of a criminal conviction if they make a genuine attempt to comply with the law and similarly at risk if they do not.

Content providers who make an effort to interpret the guidelines and assess the classification, but who make the wrong guess are likely to find themselves in court. The (in effect) defence they are offered is that they did not know, and were not aware of a substantial risk, that the matter was illegal to make available online. If they so claim, they can then be accused of being reckless as to risk. To prove they were not reckless they need to show, at least, that they tried to interpret and comply with the classification guidelines. In so doing, they admit they were aware of a substantial risk that their assessment of the classification could be wrong because the classification guidelines are vague, broad, subjective and the "correct" classification depends on a decision of members of the OFLC Classification Board, a decision which is not, under the law, required to be unanimous and frequently is not.

In order to understand the difficulties inherent in attempting to accurately assess the classification that would be given to material by the OFLC Classification Boards it is necessary, at the least, to carefully read and consider the following documents:

  1. OFLC Guidelines for the Classification of Films and Video Tapes
  2. Decisions of the OFLC Classification Review Board overruling decisions of the OFLC Classification Board
  3. Community Assessment Panels Reports, prepared for the OFLC by Keys Young, 15 June 1998 and 2 June 2000

Persons intending to enact legislation that makes it a criminal offence to make available material online that "would be" given a particular classification by the OFLC and who have not made a serious attempt to gain a good understanding of the classification guidelines and process could be accused of both recklessness and wilful blindness. Those who have read the above or similar documents will be well aware that there is a risk that any detailed discussion of "adult themes" - which include "verbal references to and depictions associated with issues such as suicide, crime, corruption, marital problems, emotional trauma, drug and alcohol dependency, death and serious illness, racism, religious issues" - could possibly be classified unsuitable for minors, or perhaps even objectionable in some instances given the application of film guidelines to written text. In the MA classification, treatment of adult themes is required to be "discreet". Discreet is defined as "with little or no detail and generally brief". Thus any discussion of adult themes that is not "with little or no detail and generally brief" carries a risk of being classified R, unsuitable for minors.

EFA considers that claims that research conducted by the OFLC shows that it is easy to know how material would be classified are insufficiently well-informed. For example, the Report of the South Australian Select Committee on the SA Classification Amendment Bill states:

"Experience with focus groups in the context of the Community Assessment Panels suggests that members of the public with minimal training can readily and correctly apply the film guidelines." (p.13).

Firstly, it should be noted that only 1 of 18 films viewed by the panels was a film classified "R", and no films classified "X" or "RC" were viewed. This research thus provides no support for a contention that it is easy to know how R, X and RC material would be classified. Secondly, while panel members were trained, the hundreds of thousands of ordinary Australians who make material available on the Internet are not trained, nor is it likely that they ever will be. Thirdly, in many instances the initial classifications given to a film by panel members were changed after the group facilitator pointed out how particular aspects of the guidelines should be applied and/or other discussion among panel group members who had different opinions about the appropriate classification.

Moreover, an analysis of the first OFLC Community Assessment Panels Report (1998) reveals that of the total classification assessments made by the panel members, 51% of their classification decisions were not the same as the decisions made by the OFLC Classification Board. 29% of the classifications were lower than the Board's and 22% higher.

In the case of the Sydney panel members who assessed the only R classified film included in the OFLC research (One Eight Seven - psychological breakdown/suicide theme), 41% gave it an MA classification, that is, lower than the OFLC Board's R classification. If these NSW residents had been deciding whether or not to make content available on the Internet, on the basis of their assessments 7 of 17 of them would be guilty of an offence under proposed NSW legislation unless they could convince a court that they could not have foreseen there was a substantial risk the material would be rated R.

In a document issued by the SA Attorney-General in March 2001 (in response to questions regarding proposed SA legislation) it is stated that: "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." However, both Saving Private Ryan and The General's Daughter were classified R by the national Classification Board and only became MA after costly appeal to the Classification Review Board. Further, 60% of a community panel who classified The General's Daughter while participating in OFLC research gave the film a lower classification (MA) than did the Classification Board (R).

6.9 Defence: Impracticability of approved restricted access system

There is considerable misunderstanding concerning the defence of an approved restricted access system, including apparently among some legislators. For example, the SA Select Committee's Report on the SA Bill states:

"As to arguments that this is invasive of privacy, the Committee considered that this was no more so than the requirement for age verification to enter an MA15+ or R film, or to enter licensed premises." (p.15)

The above statement demonstrates complete lack of knowledge about the nature of the Internet.

In the vast majority of instances when adults enter a cinema or licensed premises, it is patently obvious to the staff of such premises that the person is an adult because they can see the person is older than 18 years. Hence, the person is not asked to provide identifying information proving their age. Online, content providers cannot see visitors to their site.

Legislation such as the NSW (and SA) proposed law requires content providers to collect credit card details, or copies of birth certificates or driver's licences irrespective of whether the person is obviously approximately 17 or 70 years old. Moreover, since it is not possible for the person to merely show, for example, a credit card or a drivers licence, they are required to provide their credit card number and details (including when there is no fee charged to access online information, as there generally is not), or a copy of a birth certificate or drivers licence, to the web site/content provider. This is far more privacy invasive than merely briefly showing a driver's licence to staff of a cinema or licensed premises and involves serious risk of mis-use of credit card details and personal information from a driver's licence or a birth certificate.

Furthermore, the Bill provides no privacy protection for personal information provided by Internet users to web sites and the Commonwealth Privacy Act excludes content hosts and content providers whose turnover is under $3 million per year, which thus excludes the many content providers who are not businesses as well as small businesses online.

EFA considers legislators who enact laws requiring adults to provide credit card information or personally identifying information to access "matter unsuitable for minors" demonstrate complete lack of understanding and care concerning the security and privacy risks of using the Internet.

It should also be noted that the proposed legislation does not permit a person to provide people they know are adults (e.g. because they have met them) with a PIN/password to access to material unsuitable for children without collecting credit card details or a copy of a birth certificate or drivers licence. Hence a person who wishes to provide their adult friends with access to a restricted section of their web site is not permitted to do so without first collecting personal information. Similarly organisations, businesses, academics, community groups etc are not permitted to make matter unsuitable for minors available to their members, employees, colleagues, etc without collecting personal information from them, even when they have met those people and know they are adults.

The SA Committee also stated:

"The Committee noted that restricted access systems are available from a number of commercial suppliers on the internet." (p.15)

The above statement indicates the SA Committee was not aware that the proposed SA legislation, like the NSW legislation, does not require the use of "a" restricted accessed system, but of an "approved" restricted access system, that is, a system approved by the Australian Broadcasting Authority.

Moreover, while the NSW and SA Bills give the State Minister power to approve a restricted access system, the BSA does not recognise systems approved by a State Minister, only those approved by the ABA. Hence content on the Internet can be ordered taken down under the BSA even if access to it is subject to a system approved by a State Minister.

In the two years since the Commonwealth Parliament passed the BSA, only one "restricted access system" has been approved under that Act.

The requirement to use an approved restricted access system is administratively onerous to the extent that few content hosts or providers would be prepared to incur the costs involved in their administration. The only system approved since 1999 is that of the Australian Broadcasting Authority ("ABA") and requires collection of credit card details or copies of birth certificates etc. The many non-commercial content providers (individuals, non-profit groups, etc) who provide information free of charge would have no cost-free means, if any, of checking the validity of credit card details or photocopies of birth certificates.

If the NSW Minister (or any other State/Territory Minister) intends to "approve" any other restricted access system relative to compliance with their jurisdiction's law, EFA submits that details of such intent and the particular system proposed to be approved should be made publicly available, and public comment sought and carefully considered, before legislation requiring use of same becomes law.

Moreover, the NSW Minister should ascertain from the Australian Broadcasting Authority whether the ABA would approve, under the BSA, the system proposed to be approved by the NSW Minister. If not, content could be ordered removed from the Internet under the BSA irrespective of access being restricted by a system approved by the NSW Minister.

Further information on restricted access systems is included in Section 10 below.


7. Enforceability issues

7.1 Definitions and Interpretation

7.1.1 "Classified"

Although the Bill is said to complement the BSA, the definition of "classified" in the Bill is different from that in the BSA. This may result in enforcement difficulties.

In the Bill, "classified" means "classified under the Commonwealth Act. Commonwealth Act means the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth."

In the BSA, "classified" means "classified under this Schedule", i.e. under Schedule 5 of the BSA.

As stated in the Explanatory Memorandum to Schedule 5 (of the Broadcasting Services Amendment (Online Services) Act 1999) under the definition of "classified":

"the classification scheme under [Schedule 5 of the BSA] is distinct from the classification scheme under the [C'th Classification Act]" (emphasis added).

The Commonwealth has not empowered Commonwealth officers of OFLC to classify "Internet content" under the C'th Classification Act. That Act does not mention "Internet content" and the Commonwealth has specifically legislated to empower the OFLC/Classification Boards to classify Internet content under a different Act, that is, Schedule 5 to the BSA. Moreover, the Commonwealth Attorney-General has stated (in answers to Questions on Notice in the Senate) that the OFLC will not classify "Internet content" for online publishers, it will only classify material submitted to the OFLC in the form of a recording on a disk or on paper.

EFA submits the above situation is likely to result in prosecution difficulties under the NSW Bill, for example, concerning the use of an evidentiary certificate issued by the OFLC under the C'th Classification Act. Such a classification certificate would refer to a "film" while the prosecution would concern "Internet content".

The fundamental premise of the Bill, that all Internet content falls within the existing definition of "film" in the Classification Act, is a novel and untested proposition. Moreover, it may be problematic to prove that classified material on a disk is the same as that allegedly made available on the Internet. Issues in this regard have to some extent been addressed in the BSA (see Section 7.1.2), but not in the C'th or NSW Classification Acts.

It should be noted, however, that insertion in the Bill of another definition of "classified", referring to Internet content being classified under the BSA, is likely to result in other enforcement difficulties. The Commonwealth has not empowered the OFLC to classify content under the BSA for any entity other than the Australian Broadcasting Authority and a number of the provisions of the C'th Classification Act have no equivalent under the classification scheme established by the BSA.

7.1.2 "Internet content" and "consists of a film"

The Bill defines the term "Internet content" to have "the same meaning as it has in Schedule 5 to the Broadcasting Services Act 1992 of the Commonwealth". However, the manner in which this term is used in offence provisions in the Bill differs from its use in the BSA and suggests enforcement difficulties.

In the Bill, offence provisions proscribe making available "matter unsuitable for minors" and "objectionable matter" which are defined to mean:

  • "Internet content consisting of a film"

In the BSA, however, two different references are used:

  • "Internet content that does not consist of a film or a computer game" (emphasis added), and
  • "Internet content consisting of the contents of a film" (emphasis added)

In this regard, the Explanatory Memorandum (EM) to the BSA (under the definition of "film") states:

"References [in the BSA] are generally to Internet content consisting of the contents of a film. This is because on the Internet material is usually not in the form of a physical object (such as a videotape) from which an image can be derived. Rather, what is of interest is the images and accompanying material themselves."

The EM also states that the BSA (in Clause 5) provides:

"that for the purpose of...determining whether Internet content consists of the entire unmodified contents of a film, any technical differences between the Internet content and the film are to be disregarded. For example, if the contents of an existing film were transposed into a form which could be viewed on the Internet and that film had fewer pixels, or fewer frames, then it could still be taken to be the same film. If, however, 'scenes' in the film were modified or transposed, then it would no longer be 'unmodified'.".

However, the NSW Bill makes no such provision.

Furthermore, the Second Reading Speech to the BSA states:

"[Schedule 5] provides for a classification procedure for Internet content that is separate to that applying to conventional media in the Classification (Publications, Films and Computer Games) Act 1995. This is on the basis that the Classification Act may not encompass all forms of Internet content."

It is clear the Commonwealth believed there may be enforcement difficulties if the BSA had purported all "Internet content" consists of a "film" as defined in C'th Classification Act. Nevertheless, this is exactly what is purported in the NSW Bill.

7.1.3 Film -vs- Publication: OFLC classifications for NSW police

In addition to the matters raised in Sections 7.1.1 and 7.1.2, EFA submits that NSW police practice to date indicates there may be some law enforcement difficulties relative to the definition of "film" being applied to Internet content such as text, data, static images, speech, music or other sounds. Although the definition of "film" has not changed since 1996, and is not changed by the Bill, the OFLC has been classifying some Internet content for NSW police as a publication, not as a film.

Offence provisions in the Bill proscribe making available or supplying "objectionable matter" which is defined as "Internet content" consisting of a "film" which includes a "computer generated image" including an image in form of text. The definitions are:

objectionable matter means Internet content consisting of:
(a) a film that is classified X, or that would, if classified, be classified X; or
(b) a film or computer game that is classified RC or that would, if classified, be classified RC; or ...

film includes a cinematograph film, a slide, video tape and video disc and any other form of recording from which a visual image, including a computer generated image, can be produced, but does not include:
(a) a computer game; or
(b) an advertisement for a publication, a film or a computer game; or
(c) a recording for business, accounting, professional, scientific or educational purposes unless it contains a visual image that would be likely to cause the recording to be classified MA, R, X or RC;
computer generated image means an image (including an image in the form of text) produced by use of a computer on a computer monitor, television screen, liquid crystal display or similar medium from electronically recorded data.

The above definitions have been in effect since 1996. However, in recent years, the OFLC has been classifying Internet photos and chat room discussions as publications, which are defined as "any written or pictorial matter" other than a film, computer, or advertisement for same. Apparently, either the OFLC or some law enforcement authorities are doubtful of successful prosecution on the basis of claiming that a static image or text is a "film" as defined by the Commonwealth Act.

Some examples of material classified as a publication by the OFLC for NSW police, according to the OFLC publicly available database, include:

  • "F* a girl (said to be various child pornographic photos and stories downloaded from the internet)" - Publication (Computer Print-out) - 13 July 2001 (Applicant: NSW Police - Blacktown)
  • "North Sydney Police - CBE Job 99/0059 (said to be free photos - child pornography from the internet)" - Publication (Comp.print) - 25 February 1999 (Applicant: NSW Police Service-City Central)
  • "A4 size computer generated photographs of naked females" - Publication Comp.print - 27 July 1999 (Applicant: NSW Police Service-City Central)
  • "Internet Chat-Room Conversation - CPEA (Untitled said to be)" - Publication (Photocopy) - 23 June 1998 (Applicant: NSW Police Service-City Central)
  • "Eleven.jpg (Internet Photo)" - Publication (Unknown) - 31 January 1996 (Applicant: NSW Police Service-City Central)

The above examples show that some text and images from the Internet have been dealt with as publications, not films, in NSW.

It appears that a close analysis of the definition of "film", and/or the rules of acceptable evidence, may be necessary to identify why images on CD and computer disks have been classified as publications.

(Alternatively, it may be that the exorbitant classification fees charged by the OFLC for Internet content and images on a computer disk, due to the Commonwealth's failure to enact reasonable fees, may result in police printing the material onto paper in order to reduce the OFLC fee from some $700 to $130. If this is the case, EFA submits the NSW Government should seek to have the Commonwealth prescribe reasonable fees. See also Sections 7.1.4 and 8.1.4 regarding OFLC fees.)

As the situation presently stands, if it is established that content providers can be successfully prosecuted for making available "films" that consist of text and static images, it appears there is no impediment to content providers also being prosecuted, regarding the same material, for offences relative to "publications". For example, a commercial content provider could be prosecuted for making available "matter unsuitable for minors" online and also for selling a submittable publication, since images from the Internet and computer disks have been classified as publications.

If a Web page or an image made available on the Internet meets the definition of a film under the existing Classification Act, then commercial sellers of information on the Internet can be prosecuted under existing law for the sale of unclassified films. Existing offences relative to sale of films are not limited to sale from shops, or by post, courier, etc. Further information in this regard is provided in the Section 9.2.

Recommendation:
(a) That the Committee seek information from the NSW Police Force, or the NSW Director of Public Prosecutions, regarding any definitional problems, or classification fee cost issues, that result in computer generated images being classified as publications (instead of as films) for the purpose of NSW criminal proceedings.

(b) That the Bill not commence operation (nor any similar legislation be introduced) before any such definitional problems and related issues have been resolved and appropriate amendments made.

7.1.4 Two classification fees payable in law enforcement cases

Under the BSA, Internet content hosted in Australia is prohibited content if it has been classified RC or X (or R and without approved access restriction) under Schedule 5 of the BSA.

In instances where the Australian Broadcasting Authority receives a complaint under the BSA, and the content is subsequently classified (e.g.) RC by the OFLC under the BSA, the ABA is empowered to refer the content to State law enforcement authorities (LEAs) who may decide to prosecute the content provider. However, NSW LEAs will not be able to rely on the classification under the BSA, the content will need to be classified again under the NSW/C'th Classification Act.

As a result, unnecessary work will need to be undertaken by NSW law enforcement authorities, and the OFLC will be paid twice for classifying the same content (two times approx. $700 or more), once by the ABA and once by a NSW LEA. EFA submits this matter should be addressed and resolved in a way that will avoid waste of NSW LEAs' time and of NSW taxpayer/government funds.


7.2 Constitutional Validity

7.2.1 Overview

EFA draws to the Committee's attention that the Bill appears open to challenge on constitutional grounds. It is doubtful that the proposed law is capable of operating concurrently and consistently (in full or in part) with existing Commonwealth law, and it appears the State of NSW intends to confer powers on a Commonwealth agency in a way that may not survive scrutiny in relation to Commonwealth and State powers.

The Bill appears intended to form part of one, or two, "co-operative schemes" agreed between the Commonwealth and States/Territories. It is unclear from the provisions of the Bill whether it forms part of a co-operative scheme to regulate online content (i.e. complement the BSA) or the pre-existing co-operative scheme regulating offline content (i.e. complement the C'th Classification Act).

Under Commonwealth law, it is clear these two schemes are quite separate. However, the NSW Bill derives components of its provisions from both Commonwealth Acts. EFA submits that the end result of the interlinking of the separate schemes (as envisaged in the Bill) is a complex and unclear piece of legislation that arguably lacks constitutional validity.

Further, both the co-operative schemes referred to above were developed before the High Court decision in The Queen v Hughes [2000] HCA 22 (3 May 2000) (aka Corporations Law case) and the Bill is, in effect, identical to the draft model State/Territory legislation issued in 1999, also before the decision in Hughes.

EFA considers an observation of the High Court in Hughes to be pertinent:

"60. Courts, including this Court, regularly speak in terms of the 'intention' of the legislature when interpreting particular legislation. This polite but unacceptable fiction has never been shown in starker relief than in the present case. So complex is the interlocking legislation, with fiction piled upon fiction, that it must be doubted whether any of those presenting and enacting it were truly aware of precisely what they were doing. It may be hoped that this and other recent decisions, together with the great national importance of the subject matter of the legislation, will encourage its early reconsideration and the adoption of a simpler constitutional foundation to reduce the perils that are otherwise bound to recur, possibly with serious results."

Information concerning the potential perils of the Bill is provided below.

7.2.2 Concurrent State and Commonwealth Law

It is claimed in the Second Reading Speech of the NSW Bill that:

"Proposed part 5A inserts into the Act model online content regulation provisions devised at a national level to complement the 1999 amendments to the Commonwealth's Broadcasting Services Act 1992 dealing with online services."

However, the Bill establishes a separate regime that pays little regard to the provisions of the BSA.

The Bill relies on an underlying classification scheme that is specifically stated in the BSA to be distinct from the classification scheme applicable to "Internet content" under the BSA (see Section 7.1.1). It includes offences for making available content online that is not "prohibited content" under the BSA . In other instances, it seeks to regulate the same "Internet content" and, in some cases, essentially the same activity as is also regulated by the BSA. (It should be noted however that the NSW Bill may be enforceable against a smaller range of Internet content than the BSA (see Section 7.1.2)).

EFA submits that a range of discrepancies between the BSA and the NSW Bill, as well as undefined terms in both laws, are likely to result in contention, in the Courts, that the NSW Bill is incapable of operating concurrently and consistently with the BSA.

To the extent that the NSW Bill may be capable of operating (in part) concurrently with Commonwealth law, EFA considers it nevertheless invites challenge concerning the associated co-operative scheme/s as discussed below.

7.2.3 Validity of co-operative schemes - State powers conferred on Commonwealth

In EFA's view, the NSW Classification Act, including as proposed to be amended by the Bill, lacks constitutional validity insofar as NSW has exclusively conferred State powers and associated duties on a Commonwealth agency/officers in the absence of relevant Commonwealth powers.

This view is supported by steps taken in late 2001 by the Parliaments of Tasmania (Legislative Assembly 31 Oct 2001) and South Australia (House of Assembly 29 Nov 2001) to attempt to "Hughes-proof" amendments to their Classification Acts. (These amendments did not include provisions directed to regulating online content, and attempts directed to Hughes-proofing did not address portions of the Act that were not being amended by the Bills.)

As the Committee would be aware, the High Court decision in Hughes has brought the constitutional validity of co-operative schemes into doubt where:

  • the State law requires action or involvement of a Commonwealth officer or agency to function
  • the State law confers powers coupled with duties adversely to affect the rights of individuals
  • the power conferred on the officer or the instrumentality to carry out the function is not supported by either the Australian Constitution or a law of the Commonwealth supported by an appropriate head of power.

EFA submits that all of the above apply to the existing "co-operative" classification scheme and may apply to a greater extent to the extension to the scheme concerning online content as envisaged in the Bill.

The scheme's application to offline and online content is addressed below.

Offline material

The NSW Classification Act confers various powers and functions on a Commonwealth agency and officers. In some instances powers and functions are exclusively conferred and in others the lack of a NSW agency or officer with similar powers suggests that the powers and functions have been exclusively conferred.

The NSW classification enforcement laws require action and involvement of a Commonwealth officer or agency to function and these confer powers coupled with duties adversely to affect the rights of individuals. For example, the Act confers exclusive power on a Commonwealth agency to decide whether material is legal or illegal to distribute, exhibit, etc under NSW criminal law. No NSW agency, officer or Court is empowered to make, or overturn, a classification decision of the Commonwealth agency. Obviously a decision to classify material X or RC (and to a lesser extent some other ratings) adversely affects the right of an individual, that they would otherwise have, to freedom of speech and to distribute, exhibit, etc the particular material at issue (whether the material comprises the individual's own speech or that of other individuals). Further, the Commonwealth agency is required to certify the classification of material for evidentiary purposes in State criminal proceedings. No NSW agency or officer is empowered to do so. There are also other instances where the rights of individuals are adversely affected by powers and functions conferred by the State on the Commonwealth.

The Commonwealth's powers to participate in this co-operative scheme in the manner conferred by the State is, at best, dubious.

While the Commonwealth has always played a role in censorship of material, for most of this century this has been through customs regulations concerning importation of various types of films and publications under the Commonwealth's trade and commerce power. This power does not, however, allow the Commonwealth to regulate the production and sale etc of material in the States.

The current co-operative classification scheme became effective on 1 January 1996, and the Second Reading Speech of the Commonwealth Classification Act states:

"Reflecting the co-operative nature of Australia's censorship laws, the Bill is for a Federal Act for the Australian Capital Territory under section 122 of the Constitution. The Australian Capital Territory self-government legislation reserved to the Commonwealth the power to classify material for censorship purposes. This was to ensure that a national censorship scheme was preserved."

It seems clear that the Commonwealth considered its only (unquestionable) power to classify material for censorship purposes (other than in relation to importation of material) was derived from a decision to reserve those powers to the Commonwealth when granting the A.C.T. self-government. However, reserving this power to the Commonwealth in relation to the A.C.T. does not provide the Commonwealth with constitutional power to classify material for other jurisdictions. In this regard, the Second Reading speech of the Commonwealth Classification Act also states:

"The Bill will only apply by its own force in respect of the Australian Capital Territory and the extent to which classification decisions under it have effect in other jurisdictions is a matter entirely for the State or Territory concerned ... the Bill, in order to preserve a national scheme, makes provision for the States and the Northern Territory to confer functions on the Classification Board under their own legislation in accordance with an agreement between the Commonwealth and the jurisdiction concerned. The Bill is essentially procedural in nature and reflects the current approach to censorship matters agreed by the Commonwealth, States and Territories."

As seems clear from various remarks in the Hughes decision (and prior High Court decisions), mere agreement by the Commonwealth, States and Territories does not necessarily result in constitutionally valid legislation.

While there are other Commonwealth heads of power that are arguably relevant to classification of material in specific instances, these are unlikely to cover classification of all locally produced material. Of course, if it is ever established that the Commonwealth has sufficient powers to participate in the co-operative classification scheme relative to all material, there would be a significantly reduced need for a co-operative regime. The Commonwealth could decide to exclude States from participation in formulation of classification/censorship law and to over-ride any such State laws.

Online material

Aspects outlined above concerning offline content also apply in relation to the proposed scheme concerning online content. Briefly, for example, the Act as amended by the Bill confers exclusive power on a Commonwealth agency to decide whether a Web page is legal or illegal to make available on the Internet under NSW criminal law.

It may be that the Commonwealth has appropriate power (under its "postal, telegraphic, telephonic, and other like services" power) to participate in a classification scheme relative to Internet content.

However, there is no indication that the Commonwealth has, or intends, to empower a Commonwealth agency/officers to undertake functions and duties conferred on them by a State in the way envisaged in the Bill. It is clear that the Commonwealth has empowered the OFLC/Classification Boards to classify "Internet content" under the classification scheme established by the BSA. However, the OFLC/Classification Boards are not empowered by the Commonwealth to classify "Internet content" under the C'th Classification Act as intended in the Bill.

While laws in Victoria, W.A. and N.T. have purported to regulate online content since 1996, the offence provisions are phrased quite differently from the NSW Bill. Further, it may be pertinent for the Committee to inquire into the number of cases concerning making matter classified R and X available online that have been successfully prosecuted under those laws and, if any, whether the accused plead guilty.

7.2.4 Summary

EFA considers the proposed online co-operative scheme may be a larger target for challenge on constitutional grounds than the pre-existing offline co-operative scheme.

The proposed online regime restricts individual rights to a greater extent than the offline regime (for example in making it a criminal offence to provide material unsuitable for minors to an adult). It aims to cover speech by ordinary individuals rather than commercial publishers, provides no reliable, quick and reasonably priced means for having proposed online content pre-classified and is more complex and vague than the offline scheme. The costs of challenging the constitutional validity of the law would not be insignificant for a defendant. However, given the broad range of speech the legislation seeks to restrict and the vast number of individuals and corporations likely to be affected if the law is enforced, funds and pro-bono assistance may be offered by a wide variety of sources.

Recommendation:

EFA recommends the Bill as drafted be abandoned. It invites challenge in the Courts that may result in a finding of invalidity, not only in relation to the concurrent operation of the Bill concerning online content, but also relative to the "co-operative" classification scheme/s.

7.3 Cross jurisdictional issues

7.3.1 Minimal prospect of uniform State/Territory laws

Although it is over two years since the Commonwealth Government introduced the BSA and said that all States/Territories would introduce complementary uniform legislation, only two States have evidenced intent to do so. Further, the proposed NSW legislation is different in a number of ways from legislation that commenced in 1996 in Victoria, Western Australia and the Northern Territory (see Section 7.3.3).

With regard to the situation in other jurisdictions, in the latter part of 2001, the A.C.T. and Tasmania passed amendments to their Classification Acts relative to offline material (similar to the amendments in Schedule 1 of the NSW Bill) but did not introduce Internet censorship laws. It appears Queensland has no present plans to introduce Internet censorship laws. According to an article in The Australian on 20 November 2001:

"A spokesman for Queensland...Fair Trading [Censorship] Minister Merri Rose said state laws were probably unnecessary. 'We have our doubts about their effectiveness, so we will wait and see,' he said. 'It makes people feel good, but it may not actually do much.' The spokesman said he was not surprised other states had taken so long."

EFA submits that there is no greater prospect of uniform online content regulation legislation throughout Australia than there is of uniform defamation laws. In 1979, the Australian Law Reform Commission ("ALRC") recommended that uniform defamation laws applicable throughout Australia be enacted. Over 20 years later, uniformity is no closer, despite a number of attempts among jurisdictions to reach agreement.

In its Report the ALRC stated:

"It is not reasonable to expect editors, producers and journalists to know and apply eight separate defamation laws in publishing newspapers and magazines circulating throughout Australia and in selecting material for transmission on national broadcasting and television programs."

EFA submits that it is even more unreasonable to expect the many ordinary people who make content available on the Internet to know and apply the online content regulation laws of eight jurisdictions. While large commercial publishers and television broadcasters have the financial means to employ lawyers to advise them, this is beyond the means of the many non-commercial content providers who make information available online free of charge. It is essential that jurisdictional issues, as detailed below, be resolved.

7.3.2 Jurisdiction in which offence occurs

The Bill invites constant enquiry as to the particular State or Territory laws at issue as the law does not specify in which jurisdiction an offence (making available or supply) takes place. It does not define "make available" nor state when or where content is "made available". For example, is content "made available":

  • in the State where the content provider resides, or
  • in the State where a user downloads the material, or
  • in the State where the web server that hosts the material is physically located?

Internet content can simply and easily be made available by any content provider on a web server located in any State, Territory or country. It is as easy for a person resident in NSW to upload content to a host located in Western Australia or the USA, as it is to upload to a host server in NSW. Some Internet content hosts provide free web hosting facilities eliminating even the need to arrange payment for hosting services.

In practice, a content provider may not know where the server hosting the content is located, and may lack any means to find out. Many ordinary users without detailed technical knowledge of the Internet who dial a local phone number to upload material to their "homepage" may assume the web server is located in the same jurisdiction as they are, yet the web server may be in another State, Territory or country.

As the proposed law is drafted, it appears the Parliament intends to leave it to the courts to resolve jurisdictional issues when the law is challenged in the courts.

The following scenarios demonstrate some of the jurisdictional issues relative to enforcing the law as drafted:

  • A NSW company may have their company web site hosted physically in the A.C.T. If an employee or consultant resident in the A.C.T. uploads material to the company web site in the A.C.T. (that does not breach A.C.T. law, but does breach NSW law), who made the content available: the NSW company or the A.C.T. employee or consultant? Has the NSW company committed an offence under NSW law?
  • A national company with its head office in Canberra and branches in other jurisdictions may have their company web site hosted physically in the A.C.T. Employees in various State branch offices may upload material to the company web site. If an employee residing in NSW uploads content to the web server in the A.C.T. (that is not illegal to make available under the laws of the A.C.T.), has the employee in NSW committed an offence under NSW law? Further, has the company with its head office in the A.C.T. committed an offence under NSW law?
  • A Victorian-resident content provider may make content available on a web server located in Victoria, in a way that does not breach Victorian law, but does breach NSW law. (Under Victorian law, it is not illegal to make content available that would be classified R to another adult and the law does not prescribe use of an approved restricted access system). If the content on the Victorian server is downloaded by a person in NSW, where was the content "made available": in Victoria or in NSW? Has the person in Victoria committed an offence under NSW law?
  • A content provider who resides in Western Australia may have their web site hosted by a national Internet Service Provider (e.g. such as Telstra Bigpond, Ozemail, Pacific, etc.). Some national ISPs have a variety of servers, that is, several hosting locations for Web pages. A content provider may not know where the server hosting their web site is located, and may lack any means to find out. If the national ISP's web server is located in NSW and the content provider in WA makes available material that is not illegal under WA law to make available to adults (e.g. non violent sexually explicit material/"X"), has the WA resident committed an offence under NSW law?
  • A content provider resident in a State other than NSW may have their web site hosted by a local ISP on equipment located in their State. The ISP may be purchased by another ISP (e.g. national or NSW) who decides to shut down the purchased ISP's equipment and move the customers' web sites to web hosting equipment in NSW without telling the customers. If content on the moved web sites breached NSW law, has the content provider committed an offence under NSW law? Who made the content available: the content provider or the ISP who moved it? (For example, when Asiaonline purchased a Qld ISP, all web sites that were hosted on equipment in Qld were moved to hosting equipment in another Australian jurisdiction and customers were not notified).

EFA submits that the law as drafted appears intended to regulate the activities of persons other than NSW residents (as well as NSW residents). Hence, NSW residents will also be at risk of infringing the laws of other States/Territories that enact legislation of a similarly vague nature.

EFA questions whether there is any limitation on a content provider being charged with a separate offence in NSW and in every other State/Territory that enacts similar legislation.

Moreover, if NSW and other jurisdictions fail to clarify the jurisdictional aspects and one or more jurisdictions introduce more restrictive provisions than NSW, then NSW residents may commit crimes under the laws of other jurisdictions in relation to activities that are not illegal under NSW law. Introduction of legislation that does not clarify the jurisdictional aspects sets an undesirable precedent that is likely to have unintended consequences.

It is also important that jurisdictional aspects be resolved because the underlying classification schemes are not the same in all Australian jurisdictions.

The jurisdictions of Western Australia, South Australia, Tasmania and the Northern Territory have reserved the power to vary/override OFLC film classification decisions. Dependent on the jurisdiction, either the State/Territory Censorship Minister or Classification Board may override OFLC decisions.

Although the OFLC may classify a "film"/Web page and decide it does not warrant an R, X or RC classification, one of the jurisdictions listed above may override the OFLC classification and classify the Web page/film R, X or RC. This raises the potential for a content provider resident in State "A" (where the OFLC decision applies) to be guilty of an offence in State "B" (where the State Minister or Classification Board has overridden the OFLC decision).

A content provider resident in State "A" may have their content hosted by an ICH whose hosting equipment is physically located in State "B" and vice versa. Is the content "made available" to be subject to the laws/classification decisions of State "A" or State "B"?

Since serious criminal consequences flow, the absence of uniformity between State and Territory censorship regimes invites constant enquiry as to the particular State or Territory laws at issue and, inevitably, the imposition of a censorship regime based on the lowest common denominator - material that is legal to "make available" under the laws of every State/Territory. The most censorious State or Territory would define what is safe to make available throughout Australia, and content providers would be required to know the idiosyncrasies of "community standards" and guess as to the possible decisions of Censorship Ministers or Boards in several States/Territories.

EFA submits that either existing or proposed classification legislation must be amended to ensure content providers cannot be prosecuted for infringing laws/classification decisions of jurisdictions in which they are not resident. Unlike traditional media, where the place in which publication, broadcasting or distribution occurs can usually be clearly defined, the Internet by its very nature does not lend itself to geographical confinement.

Ordinary people in NSW cannot be reasonably expected to know the laws of every jurisdiction in the nation, and should not be placed at risk of criminal proceedings simply because they chat and/or publish material via an uncontrollable medium that crosses state and national boundaries.

Recommendation:

That the Bill be amended to state when and where the offence of "make available or supply" occurs.


7.3.3 Inconsistency with other Australian jurisdictions' laws

(a) State and Territory Legislation

Clause 45D(1) restricts adults' communications more than laws applicable to online content in Victoria, Western Australia and the North Territory. These jurisdictions' laws do not make it an offence to make R classified material available to another adult, as distinct from making it available to a minor. Further a number of defences other than an "approved restricted access system" are available, for example in WA and NT that "the defendant took all reasonable steps in the circumstances to avoid a contravention of the subsection".

Under the Internet censorship laws of Western Australia and the Northern Territory in place since 1996, it is not illegal to make material classified X (non-violent sexually explicit material) available to adults online. Further, it seems unlikely that the A.C.T. and N.T. will criminalise provision of X classified material to adults online, given this is not illegal offline in those Territories.

As detailed in Section 7.3.1, events in the latter part of 2001 indicate that Tasmania, Queensland and the A.C.T. were not planning to introduce Internet censorship laws.

(b) Commonwealth legislation

(Note: This section addresses inconsistencies regarding prohibited content hosted in Australia, not other inconsistencies with Commonwealth law.)

Clause 45D(1) unduly exceeds the claimed intent of complementing Commonwealth legislation. The Broadcasting Services Act ("the BSA") states that Internet content hosted in Australia is Prohibited Content if:

"(i) the Internet content has been classified R by the Classification Board; and
(ii) access to the Internet content is not subject to a restricted access system".

That is, R-rated material that is "subject to a restricted access system" is not in contravention of Commonwealth law.

Furthermore, the Clause 45D(1) enables prosecution proceedings against a content provider to be commenced during a period when an ISP/ICH is specifically authorised by Commonwealth law to continue making the content the subject of the prosecution available to both minors and adults. ISP and ICH's are authorised by the BSA to continue to host and provide access to material that is likely to be rated R after the ABA becomes aware there is a substantial risk it would be rated R. According to Senator Richard Alston's statements in the second reading speech of the BSA "Interim take-down notices have been limited to RC and X-rated content rather than R-rated content (without adult verification) because of the generally less serious nature of R-rated material."

EFA submits that content providers should not be subject to prosecution for provision of unclassified material which "would be" classified R given provision of this material is sanctioned by Commonwealth law because of its less serious nature.


8. Classification issues

8.1 Inadequacy of OFLC Classification Procedures

8.1.1 Classification of "Internet Content" not provided

EFA submits that the proposed law should not be implemented until the OFLC is able to reliably, and at reasonable cost, classify Internet content for persons who wish to be sure they would not infringe the law in making particular material available online. Further, the proposed law should not be implemented until the OFLC makes clear and concise information on its procedures and fees for classification of Internet content publicly available.

According to Answers to Questions on Notice in Senate, provided by the Federal Attorney General on 25 June 2001, the OFLC's procedures are inadequate and obtaining a classification certificate would not necessarily ensure that an online publisher could not be convicted in respect of the material classified.

The Federal Attorney General's answers included:

...The OFLC does not provide online publishers with a classification service that is specific to Internet content... (Q&A Item 4 & 5)

The OFLC does not classify material on the Internet unless the content has been down-loaded or stored on a recording, such as on a computer disk, or printed out. (Q&A Item (7)(a))

... [Internet] content to be classified must be submitted to the Classification Board in a form that complies with the definitions set out in section 5 of the Classification Act, for example in the form of a recording on a disk, and must be accompanied by a valid application. (Q&A Item(6)(a))

(4 & 5) ...Internet content in the form of a recording may be considered to be either a 'film' or a 'computer game' for the purpose of classification under the Classification Act. Accordingly, existing or proposed Internet content may be submitted for classification as a 'film' or a 'computer game' under section 14 or 17 of the Classification Act. Internet content that is submitted in a printed form, as a print-out, falls within the definition of 'publication' under the Classification Act, and is classified accordingly. ... (Q&A Item 4 & 5)

It is clear from the above that the Commonwealth Classification Act does not recognise "Internet content" (nor authorise the OFLC to classify "Internet content") and so the classification given to "Internet content" depends on whether the material is submitted to the OFLC on paper, or on a computer disk. In the former case, the publications guidelines will be applied, while in the latter case the film guidelines or the computer game guidelines will be applied.

However, classification as a publication would be of no assistance to online publishers as a defence to a prosecution because when the material is placed on the Internet it becomes an unclassified film, i.e. a computer generated image (including text), or a computer game and the offence provisions in the Bill refer to "films" and "computer games", not publications. The NSW Bill does not recognise that publications may be placed on the Internet, although legislation in the jurisdictions of WA, NT and VIC does.

Some material that is classified Category 1 and 2 Restricted (restricted to adults) under the publications guidelines would be classified X under the film guidelines, and some would be classified R. Therefore, obtaining a publications classification would not identify whether the material would classified R or X relative to offences under proposed NSW law. (However, under for example Victorian legislation, a publication classified Category 1 or 2 Restricted is legal to make available on the Internet, provided it is not published or transmitted, or made available for transmission, to a minor. Also, a number of defences are available in event of unintended receipt by a minor).

Moreover, the statement in the answers that "[Internet] content in the form of a recording may be considered to be either a 'film' or a 'computer game'" apparently refers to the OFLC Board's power under Section 15 of the Commonwealth Act ("Discretion of Board"). The OFLC is empowered to decline to deal with an application for classification as a film and may require the material to be resubmitted as a computer game depending on inter alia "the degree of interactivity involved". If the OFLC Board decides a web page is sufficiently "interactive" (perhaps because it contains links to other web pages) to require it to be dealt with as a computer game, material that would otherwise be rated R would be classified RC because the highest classification for a computer game is MA15+.

8.1.2 No procedure for classifying dynamic web sites

It should be noted that it is impossible to place some types of web sites on a portable disk for posting to the OFLC. The interactivity of some sites depends on technology of the web server (e.g. dynamic sites, database facilitated sites, etc), hence content submitted on a portable disk may have a different level of interactivity than when it is on the Internet. The OFLC Board is required to take interactivity into account when classifying and this affects whether the material is classified as a "film", an "interactive click-on access film", or a "computer game". Hence material on a portable disk may be given a different classification than would apply to content actually on the Internet.

8.1.3 Prior classification no guarantee against conviction

In instances where "Internet content" has been classified as a film or a computer game prior to it being made available online, the classification certificate may not be of any use as a defence to a prosecution. The online publisher may have to pay for a second classification and the content could be classified differently the second time. In this regard, we refer to the following question and answer in the Senate:

6 (d) what procedure does the OFLC have in place to enable them to identify whether the OFLC has issued a classification certificate applicable to particular Internet content, for example, where content is subsequently moved to a new address/hosting location on the Internet as a result of the publishers content host/ISP ceasing operations;

6 (d) ...The Board maintains detailed records of all classification decisions, including content descriptions and, in some cases, copies of the classified material for the purpose of future identification. In cases where there is doubt about the classification status of material submitted for classification, the Classification Board may interrogate relevant records to ascertain whether the material is identical to previously classified material. The Classification Act provides that if material that has been classified is subsequently modified, the material becomes unclassified. The onus as to whether previously classified material has been modified and therefore requires classification, lies with the applicant. Where there is enduring doubt about the classification status of material submitted for classification, the Classification Board may classify the material and issue a certificate.

The statement that the OFLC only maintains copies of classified material "in some cases" is of concern in the context of an answer to a question specifically about keeping copies of Internet content. It appears the OFLC does not intend to keep copies of Internet content that it has been paid to classify because, if the OFLC does, the question could easily have been answered accordingly.

Unless the OFLC keeps copies of classified content, a certificate will be of no use whatsoever to an Internet publisher alleged by police to have made available "objectionable matter" or "matter unsuitable for minors" because the OFLC will not have any way of knowing whether the content is identical to the content they classified. Therefore, there will be "enduring doubt" and the OFLC "may" classify it again (and charge a second fee for classification of the same material). In the interim, the members of the Classification Board and/or the classification guidelines, may well have changed resulting in the material being given a more restrictive classification the second time.

This situation makes it irrelevant that Net content is dynamic and often changed. Obtaining a classification certificate prior to making the material available online would not provide assurance against criminal conviction even if the content is never changed.

8.1.4 Exorbitant fees for classification

While it has been claimed that the OFLC does classify "Internet content", if it is copied onto a portable computer disk and submitted, both the OFLC and the Federal Attorney-General are apparently unable or unwilling to advise of the relevant classification fees. The following question and answer was tabled in the Senate:

6 (e) what is the amount of the fee charged to online publishers for classification of Internet content consisting of a web page containing solely of text and non-moving images;
(f) is the classification fee referred to in (e) prescribed in the Schedule to the Commonwealth classification regulations; if so, is the fee based on running time of a film (minimum $770) or is the fee that is applicable to publications such as magazines and books ($130);

6 (e) and (f) The Classification (Publications, Films and Computer Games) Regulations (the Regulations), Schedule 1, set out the fees for classification. If the content is submitted for classification as a 'film' the fee will be calculated on the running time of the 'film' unless it is an 'interactive film', in which case the fees prescribed for 'interactive films' will apply. If the content comprises a 'computer game' and is submitted accordingly, the prescribed fees for 'computer games' will apply. If a print-out of the content is submitted for classification as a 'publication', the fee will be calculated in accordance with the prescribed fees for 'publications'.
The answer provides no guidance as to actual fees because fees depend on what the OFLC regards as a "film" and what type of "film". For example:

  • If a web page contains text and 3 static images, when the material is placed on a portable disk and sent to the OFLC there would be 4 files on the disk, each of them fitting the definition of a "film". Will the applicant be charged for one film or four films? (i.e. approx. $700 or approx $2,800).
  • Classification fees for "films" are based on "running time". For how long does a web site "run"?
  • If the particular Internet content (web page/film) is not interactive, does the OFLC charge the fee for classification of a film for sale or hire (min. $510), or for a film for public exhibition (min. $770)? Note: The vast majority of Internet content is not for "sale or hire" and charging a fee for classifying a film for "public exhibition" presupposes that someone will "project or screen" the material in a public place, which means "any place which the public is entitled to use or which is open to, or used by the public, whether on payment of money or otherwise;". It appears neither of these fees is legitimately applicable to Internet content.

Furthermore, it appears NSW residents outside Sydney would be unfairly discriminated against in instances of material the OFLC regards as an "interactive click-on access film" since the fee is $690 if the applicant demonstrates the material to the OFLC, which is located in Sydney, otherwise the fee is $1490 for non-demonstrated material.

It is also unjust to charge fees for films when the material at issue is, for example, one image or a web page of text, since the fee for classification of an entire offline magazine is $130.

Prescribed fees are:

  • A film (0-15 minutes) for public exhibition: $770
  • A film (0-15 minutes) for sale or hire: $510
  • An interactive or click-on access film, if demonstrated by the applicant: $690
  • An interactive or click-on access film, if not demonstrated by the applicant: $1490
  • A computer game, if the application for classification is accompanied by an assessment of the game by an authorised person - $360
  • A computer game other than a computer game specified above - $590

8.1.5 Summary

It is clear from these answers that no proper procedures had been put in place to classify Internet content and no other information on procedures and fees has since been announced or made publicly available. It is totally unacceptable for Internet publishers to be faced with the level of confusion exhibited in the answers over whether Internet content should be classified as a film, as a publication, or as a computer game.

EFA submits that the classification system is quite clearly unable to cope with the particular characteristics of Internet content, namely any material submitted for classification can at best be an attempt to capture the content at a single point in time. To suggest that a typical website with a mix of text, static images and hyperlinks is analogous to a movie film displays a breathtakingly superficial appreciation of the problem. The legislation clearly cannot proceed when such confusion exists about the basic premise on which it is based - namely that online content can be classified in the same way as traditional media.

The inability of the OFLC to cheaply and reliably classify web site content shows the NSW Parliament would be wrong to outsource its Internet censorship to the OFLC.

Recommendation:
That the Committee seek to obtain clear answers from the Office of Film and Literature Classification in relation to the above matters and make such answers, whether clear or not, publicly available.

AND

That the Bill not commence operation until the OFLC has documented, and made publicly available, information concerning their procedures and fee structure for classification of Internet content that clearly shows they are able to reliably, and at reasonable cost, classify Internet content for persons who wish to be sure they would not infringe the law in making particular material available online.


8.2 Application of movie/film classification guidelines to text

It should be noted that all on-line content is to be subject to classification under guidelines for films, even in cases where content consists entirely of written text.

The difficulties inherent in attempting to assess how the OFLC Classification Board would classify particular material will be exacerbated by the requirement that Internet content be classified using guidelines for films. Film guidelines were developed for entertainment material involving moving images and sound on the basis that such material has more impact on the viewer than written text and static images. Film guidelines are therefore more restrictive than guidelines for publications and applying them to Internet content is very likely to result in material that is legally available in publications off-line being illegal on-line.

In addition, film guidelines are written in a manner that makes their interpretation relative to written text and static images extremely difficult if not impossible. It appears this has been recognised by Censorship Ministers who agreed on 27 July 2000 to review the guidelines in view of concerns raised at the meeting that the film guidelines were less than adequate and perhaps unsuitable for assessing Internet content. However, this review did not commence until 2001 and, based on previous reviews, it is unlikely that revised guidelines will be agreed and approved by the Censorship Ministers prior to the latter half of 2002.

8.3 Material Classified R ("Matter Unsuitable for Minors")

As discussed in Section 4.1, material classified R is not limited to that involving explicit sex or violence. There is a broad range of socially valuable information likely to attract an R classification because it may be disturbing to minors.

In addition, the difficulties inherent in guessing what classification would be given to material by members of the OFLC Classification Boards, as discussed in Sections 6.1 and Section 6.8, has the potential to result in criminal prosecution of well-intentioned content providers. Moreover, uncertainty as to classification will chill online speech to a greater extent than intended by the Parliament. Many content providers will err on the side of caution, rather than risk criminal prosecution.

While the proposed legislation offers a defence of access being subject to an approved restricted access system, this defence not only reverses the onus of proof, but is impractical and unworkable in the context of the vast majority of material that is or would be classified R.

The effect of requiring an approved restricted access system is, in effect, the same as banning the provision of R material online in NSW. As detailed in Section 10, most commonly used search engines do not index material protected by access controls, hence it will be difficult, if not impossible, to find Australian material, it will be easier to find readily accessible material on overseas sites.

Further, most Internet users will not bother going through a verification procedure. On the Web, attention spans are short and barriers to access are low. Even a minor extra barrier will deter people. A simple registration requirement has this effect and a requirement to submit credit card details or a birth certificate, as in the case of the only approved restricted access system, with all the privacy concerns that raises, will deter almost all visitors who will instead access overseas sites.

Commonwealth and proposed NSW legislation does not provide any control whatsoever on overseas sites providing material that is or would be classified R. The imposition of access control systems on Australian sites will therefore have no effect on the unrestricted availability of R-rated material to minors, since it only affects the 1 or 2% of content hosted in Australia. In order to protect children from material that would be classified R, there will be an ongoing need for parents and educators to supervise the access of those in their care.

Recommendation:
That offences relative to "matter unsuitable for minors", i.e. material that is or would be classified "R", be deleted.

8.4 Material Classified X ("Objectionable Matter")

EFA submits that material classified "X" and that classified "RC" should not be treated in criminal law as if it were the same.

EFA notes that it was stated in the answer to a question without notice in the NSW Legislative Assembly on 25 October, 2001, that:

"The amendments will make it illegal to make available or to supply objectionable matter to the Internet that would be refused classification or would be classified X for its explicit sexual or violent content."

However, material classified "X" under Australian law does not include violent content. Moreover, since the draft model legislation was issued for public comment by the NSW Attorney General in 1999, the material allowed in the "X" classification has been further restricted to ban the depiction of various legal sexual activities between consenting adults.

EFA considers the definition of "objectionable matter" should be amended to exclude material that is or would be classified "X". Such material would more appropriately be included in a separate category, titled "non-violent sexually explicit matter", that is not illegal to make available to adults who wish to view it on the Internet.

As noted in Section 6.1.2, the application of guidelines developed for movies and videos to text and static images on the Internet will result in material equivalent to that in Category 2 (and probably Category 1) Restricted publications being classified X (non-violent sexually explicit material) online.

In October 1997 during a speech at Murdoch University, Federal Attorney-General Darryl Williams explained the basis of Australia's censorship system, that is, the concept of classifying material on the basis of the views of reasonable adults. He said:

The 'reasonable adult' test is used in two different senses - as a measure of community standards and also as an acknowledgment that adults have different personal tastes.

The 'community standards' test, to be taken into account in making classification decisions, refers to 'the standards of morality, decency and propriety generally accepted by reasonable adults'. It is usually applied in the context of refusing classification to material.

One of the criteria for determining whether a film should be classified 'R' or 'X' or a publication given a restricted classification is whether the material is 'likely to cause offence to a reasonable adult'. This is the other sense in which the 'reasonable adult' test occurs and acknowledges that individuals may have different personal tastes. In other words, although some reasonable adults may find the material offensive, and thus justify a restricted classification for it, others may not. They should be allowed to have access to the material if they wish.

EFA submits that, at least in the on-line context, effect should be given by Commonwealth, State and Territory governments to the concept that "although some reasonable adults may find [non-violent sexually explicit] material offensive, and thus justify a restricted classification for it, others may not. They should be allowed to have access to the material if they wish."

EFA submits that the current bans on sale of X classified videos are misguided and result from misinformation.

In 1988, the Joint Select Committee on Video Material recommended "a new category NVE (non-violent erotica) be instituted" to precisely define the material contained within the X category. No evidence was found that viewing such material causes harm. Although implications to the contrary are promulgated by some people from time to time, the majority of the Joint Select Committee did not recommend a ban on all non-violent erotica.

It seems clear that bans in Australia reflect attempts to enforce the "community standards" desired by some people on other people, rather than reflecting community opinion or attempting to prevent harm. Surveys and opinion polls conducted since 1992 by the OFLC, the ABA and reputable public opinion research organisations have consistently shown that 70% (or more) of Australian adults believe that non-violent sexually explicit material should be available to adults who wish to view it. Australia is becoming one of the few English-speaking countries that continue to deny adults the freedom to publish and read sexually explicit material.

EFA calls on the NSW Government not to criminalise content providers who make available material that would be classified X. Many Australian adults wish to view such material and if Australian content providers are not permitted to make it available, Australians will simply pay overseas content providers for access to such material, as well as access it on free overseas sites. (The Commonwealth legislation (the BSA) has no effect on the availability of on-line material that would be classified X to Australians who wish to view it.) To encourage Australians to spend their money overseas is detrimental to Australia's economy, in addition to contravening Australia's international obligations as a signatory to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR).

Recommendation:
That the definition of "objectionable matter" be amended to exclude material that is or would be classified "X" and, if provision of such material is to be regulated by criminal law, it be included in a separate category, titled "non-violent sexually explicit matter", that is not illegal to make available to adults who wish to view it on the Internet.

8.5 Material Refused Classification (RC)

Of significant concern in the area of RC material is the criminalisation of text thought to incite or instruct in matters of crime. In this area, access to the variety of material on the Internet may include access to material that would not be a suitable subject for a movie, but may be harmless in context. For example, bans on teaching burglary techniques should not also ban a lockmaker's web site providing information to locksmiths.

In Australia, the OFLC's decision on the La Trobe University Student Journal Rabelais article, leading to prosecution for publication of Refused Classification material, is a dangerous precedent for the OFLC's entry into Internet classification. There are many books banned in Australia (such as "E is for Ecstasy" or "Steal This Book") which are legal in most other English-speaking countries and the text of some is available on the Internet. To automatically classify contentious material of this sort as RC on the Internet would lead to absurd prosecutions.

EFA submits that the decision in Michael Brown and Ors v. OFLC, to the extent that it may represent Australian law, is a matter for law reform by the Commonwealth and States. It could not be considered a reasonable position for the RC classification to extend to matters outside the Brandenburg v. Ohio definition:

"Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

As the decision presently stands, descriptions of Mahatma Gandhi's campaign of non-violent civil disobedience would be Refused Classification by the OFLC.

The potential for well-intentioned Australians, from teenagers to grandparents, to become unwitting victims of overzealous regulation is highly disturbing.

While it may be argued that Australians may have a reasonable understanding of what is permitted in publications and movies off-line from reading and viewing same, this is not actually a useful guide. For example, while the student editors of Rabelais were prosecuted for publishing material claimed to instruct in matters of crime, the August-September 1998 edition of Colors (the magazine of United Colors of Bennetton) included a six page article titled "Breaking and Entering". This article contained interviews with "Technical Advisors", i.e. house breakers, and provided detailed instructions (including text and explanatory drawings) on how to break into houses. Attention was drawn to the article in the Sydney Morning Herald of 31 August 1998. Nevertheless that edition of Colors magazine was not banned, was not even classified and remained on sale, to both adults and children, in Australian newsagents.

On the global Internet, users may access a wide range of material which would be banned on Australian sites, yet Governments plan to expect them to know that they may be penalised under criminal law for publishing the same or similar information.

One wonders whether university students, for example, would realise that making available a thesis documenting in detail torture in prisons may be a criminal offence on grounds that it "instructs in matters of crime". In the event such content would not be refused classification, it is not likely to escape being rated "unsuitable for minors" requiring access to be subject to an approved restricted access system. In any case, what justification can reasonably be presented for punishing Australians who make available such material, while academics in other countries may make such material available to anyone on the Internet. While the OFLC is required to consider educational merit as well as protection of minors from material likely to harm or disturb them, it will be a matter of sheer guesswork for content providers as to which aspect would take precedence in the opinion of a majority of the members of the OFLC Classification Board.

Applying guidelines for movies to written text on the Internet has the distinct potential to result in absurd prosecutions for making available information in books and other publications that are not restricted off-line.

EFA calls on the NSW Parliament not to enter into Internet regulation intended to criminalise NSW people using classifications so inflexible and simplistic as those developed for movies and publications.

While claims may be made that offence provisions will only be used and/or prosecuted in the most exceptional cases of undoubted criminality, EFA submits that this is improperly relying on the discretion of police and prosecutors to apply a bad law. In the case of the student editors of Rabelais, after some 4 years, and much public criticism of the decision to press charges, the Director of Public Prosecutions dropped the charges without explanation. It is preferable that bad laws enabling ludicrous prosecutions, and associated waste of taxpayers' funds, not be enacted in the first place.


9. Applicability issues

9.1 Drafting error enables prosecution of persons intended to be exempt

Clause 45B(2) makes the Bill apply to persons to whom it is not intended to apply because the phrasing of the exemption clause does not correspond exactly to the relevant offences under the Bill. The clause states:

"Nothing in this Part makes it an offence to supply objectionable matter or matter unsuitable for minors by means of an on-line service to any person, or class of persons, prescribed by the regulations."

The South Australian Select Committee recommended the above clause be amended and the SA Bill has been amended (but had not been passed by the SA House of Assembly as at January 2002). EFA recommends the same amendment be made to the NSW Bill.

Recommendation:

In Clause 45B(2) after the words "an offence to" insert the words "make available or".

9.2 Non-exclusive application of Part / potential unintended consequences

9.2.1 Prosecution of Librarians, Teachers, Internet Cafes

Clause 45B(3) appears intended to provide protection from criminal proceedings to persons who may make material available in circumstances beyond their control. However, it is inadequate due to definitional problems and/or the effect of insertion of the clause into the existing Classification Act. The clause states:

45B (3) A person is not guilty of an offence under this Part by reason only of the person:
(a) owning, or having the control and management of the operation of, an on-line service, or
(b) facilitating access to or from an on-line service by means of transmission, down loading, intermediate storage, access software or similar capabilities.

While the above clause may provide adequate protection in relation to offences under Schedule 2 of the Bill, it appears unlikely to provide adequate protection to persons such as librarians, teachers, parents and managers of Internet cafes in relation to offences under the existing Act that may be committed as a result of facilitating access to or from an on-line service.

Schedule 2 defines proscribed matter as "Internet content consisting of...a film or computer game" that is or would be classified R, X or RC. The definition of a "film" in the existing Act states:

"film includes...and any other form of recording from which a visual image, including a computer generated image, can be produced"

If this definition of "film" includes text and static images on Web pages, as appears intended by Schedule 2, then under the existing Act librarians and teachers (and others) who manage or supervise premises containing computers connected to the Internet can be prosecuted for screening films, that is, web pages.

In this regard the existing NSW Classification Act includes the following:

'exhibit a film (or an advertisement for a film) means project or screen the film or advertisement'

There is no doubt that a web page is "screened" on a computer monitor.

'public place means any place which the public is entitled to use or which is open to or used by the public, whether on payment of money or otherwise'

The definition of "public place" certainly covers libraries, some (perhaps all) schools and Internet cafes.

Under the existing Act, it is an offence to publicly exhibit (i.e. screen) an unclassified film (i.e. web page) or films (i.e. web pages) classified in a particular way:

'6. ...public exhibition of unclassified, RC or X films prohibited
A person must not sell or publicly exhibit:
(a) a film classified RC or X, or
(b) an unclassified film.'

Hence, under the existing Act, it is illegal to screen any "film", i.e. web page, that is not classified. It is also illegal to screen some films that are classified. Therefore, a librarian, teacher or Internet cafe staff member who merely has superintendence or management of a public place where an unclassified web page (film) is screened (exhibited) is apparently in breach of the law. Since the vast majority of Internet content is not classified and is unlikely to ever be classified, merely providing a computer that screens any Web page appears to be a criminal offence. While the potential for such a prosecution may not immediately seem significant, it is a different matter when one considers that, for example, pornography may be inadvertently displayed on computer screen while a mother and child are accessing the Internet in a library. While this is beyond the control of the manager or supervisor of the library, and neither the BSA or proposed NSW legislation will make the slightest difference to the possibility, there is no apparent impediment to prosecution of persons who merely have superintendence or management of premises in which a film/web page is exhibited/screened by another person.

EFA submits that if it is contended that the above persons could not be prosecuted because a web page is not a film under the existing Act, then a web page is also not a film under Schedule 2 of the Bill as the definition of a film is the same in both instances. Therefore content providers/Internet users could not be prosecuted for making available a web page because it would not be "Internet content that consists of a film".

If Internet content such as a Web page is a film, then those providing access to the uncensorable Internet must be protected from prosecution for State and Federal offences under all Parts of the existing Act.

Recommendation:

That either the existing Act or Schedule 2 of the Bill be amended to ensure that persons who merely facilitate access to an online service and are intended to be protected from prosecution by Clause 45B(3) of Schedule 2 cannot be prosecuted for offences prescribed in other parts of the Act.

9.2.2 Prosecution of Parents and Guardians

Other sections of the existing Act present the potential for parents and guardians to face criminal proceedings for accidentally privately exhibiting Web pages/films in the presence of their children. For example, Clause 14 states:

14(1) A person must not privately exhibit in the presence of a minor a film classified RC or X or an unclassified film that would, if classified, be classified RC or X.
Maximum penalty: 100 penalty units.
Since the legislation is claimed to be necessary on the ground that parents cannot control their own and/or their children's access to the Internet, it is unreasonable to enable their prosecution should material on the world wide Internet be inadvertently accessed and screened in their home.

Recommendation:

That either the existing Act or Schedule 2 of the Bill be amended to ensure that parents and guardians cannot be prosecuted as a result of material on the world wide Internet, that would be classified X or RC, being inadvertently accessed and screened in their home in the presence of minors.

9.2.3 Prosecution for Sale of Unclassified Material, e.g. newspaper articles, online

If a Web page containing text and static images is a "film" under the Act (as discussed above) then commercial content providers such as the Sydney Morning Herald are in breach of the existing NSW (and other State/Territory) Classification Act whether or not the web pages ("films") they make available are objectionable matter or matter unsuitable for minors.

Newspaper publishers presently sell electronic copies of newspaper articles online, via provision of a Web page/"film" containing the article, without having the article (Web page/"film") classified prior to sale. It is an offence in NSW and all other States/Territories under existing Acts to sell an unclassified film.

Recommendation:

That either the existing Act or Schedule 2 of the Bill be amended to ensure that persons who sell unclassified newspaper articles, books and magazines, etc, via publication of the information on web pages for downloading, cannot be prosecuted for sale of unclassified "films"/web pages.


10. Restricted Access Systems

10.1 Availability and Suitability of Systems

There is considerable misunderstanding concerning the defence of an approved restricted access system. As detailed in Section 6.9 above, it is apparent that some legislators have no understanding whatsoever regarding the nature of the Internet, as distinct from a cinema or licensed premises, and hence the privacy and security issues involved in requiring users to provide proof of age online, and furthermore have failed to grasp that the proposed legislation requires the use of "an approved", not "a", restricted access system.

The Bill refers to "approved restricted access system" which is defined as follows:

45D (3) In this section:
approved restricted access system means:
(a) a restricted access system within the meaning of the Broadcasting Services Act 1992 of the Commonwealth; or
(b) any other system of limiting access declared by the Minister, by order published in the Gazette, to be an approved restricted access system for the purposes of this definition.

While the NSW Bill gives the State Minister power to approve a restricted access system, the BSA does not recognise systems approved by a State Minister, only those approved by the ABA. Hence content on the Internet can be ordered taken down under the BSA even if access to it is subject to a system approved by the NSW Minister.

In the two years since the Commonwealth Parliament passed the BSA, only one "restricted access system" has been approved under that Act by the ABA.

The system is administratively onerous to the extent that few Australian content hosts would be prepared to incur the costs involved in setting up the relevant systems (see Section 6.9). The system is extraordinarily privacy intrusive, requiring users to provide personal identifying information that goes far beyond proof of age, while not meeting the objective of protecting children more effectively than standard restricted access systems presently in use. Identification details are easily forged, demonstrating conventional wisdom that effective age- authentication systems are almost impossible to implement on the Internet. The system is totally out of step with the essential character of the Internet as a public communication medium.

Information about other presently available "restricted access systems" (that have not been "approved") is provided below.

EFA submits that there is a fundamental misunderstanding among policy makers and legislators as to the type of restricted access systems presently available which claim to restrict access to particular content on the Internet to adults. While these systems require Internet users to enter a PIN number or password (Adult Check type services), or a credit card number, in order to access material, they do not prevent children from accessing the material, however they do infringe adults' privacy.

Access by PIN Number/Password ("Adult Check" Type Services)

Many providers of sexually explicit material require users to pay a fee to a different service provider for a PIN number or password prior to being granted access to material on their site. The providers of these PIN numbers/passwords pay web site operators a percentage of the fee paid by the user. Web site operators place an advertisement for the PIN number/password service on their own site. When users click on this advert to go the other site, the PIN number provider receives notification of the site the user was visiting and thus knows which web site operator to pay for the business/referral. Use of such systems by web site providers is as likely to be a money making exercise as a claimed means of keeping children away from their content.

Providers of PIN numbers/passwords advertise that these are instantly available on filling in a web form and providing a credit card number for payment. It is thus highly unlikely that the providers verify that the user of the credit card is an adult at any time, let alone before they are provided with a PIN number/password and thereby granted access to material, nor is it apparent how they could verify the user's age. Most, probably all, providers of PIN numbers/passwords are located outside Australia, although they do provide PIN numbers/passwords to Australians.

It is clearly impossible for any PIN number/password provider, ISP or content provider to know who is actually at the other end of an Internet carriage service line applying for a PIN/number password or accessing a web site using same.

Some banks provide credit cards to minors and minors may "borrow" a credit card number from their parents unbeknown to them. While parents may notice an authorised charge of some $20 on their credit card bill, this may not occur until some two months after the PIN number/password was provided. During that time harm, if any, that may be suffered by minors in accessing R-rated content will likely have occurred.

Moreover, without unauthorised use of a credit card, minors may be told of a PIN number/password by friends, or may obtain a PIN number/password from lists available on web sites.

Access by Credit Card Number

Another form of "restricted access system" is to require users to provide a credit card number prior to accessing content. This is presently used only by commercial sites who require payment for products or services. While the marketing model works for popular adult sexually explicit sites, it is well known that Internet users will rarely pay (regardless of their financial circumstances) to access other information.

The proposition that non-commercial Australian sites commence requiring credit card numbers presents a number of problems.

Extra features such as scripting and server configuration are required to implement systems restricting access to persons providing credit card numbers. Most content providers do not have the technical knowledge or funding to set up such systems themselves. Furthermore, the technology necessary to implement such systems is often unavailable to small content providers whose content is hosted by ISP/ICHs who do not offer them the technical means to restrict access due to technical and security issues, costs, etc.

In cases where either the content provider or their ISP/ICH is technically and financially able to restrict access by requiring credit card numbers other problems arise.

Legislation provides for the declaration of "approved restricted access systems" and requires providers of R-rated content to use such systems. If, for example, a system requiring users to enter a credit card number was approved, there is no requirement for the content provider to check the validity of the credit card number or the age of the user of the credit card. In such a circumstance, an Internet user may enter any group of 16 digits.

If the approved system includes a requirement that the content provider check that the credit card number complies with the check algorithm, an Internet user may simply download one of the credit card number generator algorithms freely available on the Internet and create a number.

If the approved system includes a requirement that the content provider or ISP/ICH check that the credit card number belongs to a bona fide account, then government will need to legislate that banks and other credit card providers must provide free-of-charge services to verify validity of credit card numbers in cases where no sale is to take place. It is highly questionable whether banks and other credit card providers will greet such a government requirement with enthusiasm, however absent their co-operation there is no means by which persons providing content free-of-charge are able to verify the bona-fides of a credit card number.

In circumstances when the bona-fides of a credit card number can be verified, Internet users, both adults and minors, may use credit card numbers belonging to their parents, relatives, friends, enemies, employers or indeed politicians should they happen to have that information. Since no sale is taking place, the misuse of credit card numbers is unlikely to be identified by the owner of the credit card. Meanwhile a trail suggesting they have accessed numerous sites of varying content will be left around the Web.

10.2 Privacy

Australians have long evidenced serious concerns about their privacy. Almost all web traffic consists of private communications - personal access to information. Users expect privacy for this in the same way that they expect their library borrowing records to be private or their magazine purchases to be largely anonymous.

Requiring users to obtain and use PIN numbers/passwords, or provide credit card numbers, enhances the ability of ISPs, web site operators, etc., to monitor and track Internet users' activities and interests. It may therefore result in such information, as well as their personal information provided to obtain a PIN number/password, being used for marketing and other purposes without their knowledge or permission.

Furthermore, the Bill provides no privacy protection for personal information provided by Internet users to web sites and the Commonwealth Privacy Act excludes content hosts and content providers whose turnover is under $3 million per year.

See also Section 6.9 regarding the significant differences between requiring "proof" of age offline (e.g. in cinemas and licensed premises) compared to online.

10.3 Ease of Finding Australian Content

Search engines do not index material protected by access controls. Small sites that cannot afford advertising depend on search engines to draw visitors. Many sites contain content that would be rated in different categories. Without the resources to classify their content, content providers will be forced to take the safe option and "protect" the entire site, thus restricting access to material which is not even R-rated. This will result in it being difficult for adults to find information they seek. Information on non-Australian sites will be easier to find than Australian content.

10.4 Effectiveness in Protecting Minors

EFA submits that the proposed mandatory use of "restricted access systems" (approved or otherwise) in relation to material that is or would be classified R presents more problems than it solves. In fact, it does not solve any problem.

Commonwealth and proposed NSW legislation does not provide any control whatsoever on overseas sites providing material that is or would be classified R. The imposition of access control systems on Australian sites will therefore have no effect on the unrestricted availability of R-rated material to minors, since it only affects the 1 or 2% of content hosted in Australia. In order to protect children from material that would be classified R, there will be an ongoing need for parents and educators to supervise the access of those in their care.

Regulation of R-rated content will cripple the Australian content-hosting industry and adversely affect Australian content providers. It will disproportionately hurt smaller, and particularly non-commercial, content providers.

Many, if not most, Internet users will not bother going through a verification procedure. On the Web, attention spans are short and barriers to access are low. Even a minor extra barrier will deter people. A simple registration requirement has this effect and a requirement to obtain and use an adult ID, with all the privacy concerns that raises, will deter almost all visitors who will instead access overseas sites.

Content providers will opt to host their content overseas, where they simply do not have to worry about attempting to restrict access. They will either use one of the many overseas services that host content free of charge, or pay overseas services to host their content. In cases where the content is not illegal under the laws of the country where the content is hosted (e.g. R, X and some RC material is not illegal in the USA), it is questionable whether content hosts would disclose identifying information about their customers' to Australian law enforcement authorities.

Enforcing the use of "restricted access systems" will be the death knell for Australian content (in Australia) which requires an "adult perspective" but does not contain pornography or violence. Meanwhile minors will continue to have unrestricted access to material provided by non-Australian content providers that would be classified R.

The BSA enables the taking down of R-classified material by ICH/ISPs. There is no benefit in criminalising Australian content providers, or attempting to restrict content and conversation on the Australian Internet to that fit for a kindergarten, when similar material will be readily available to children on overseas sites.

Recommendation:
That offences relative to "matter unsuitable for minors", i.e. material that is or would be classified "R", be deleted.


11. Australia's International Obligations

There is a disturbing trend towards an increasingly repressive censorship regime in all media in Australia. While such measures invariably claim "protecting the children" as an objective, they deny the rights of adult Australians to read, see and hear what they want and they deny parents' responsibility for safeguarding their children.

The Internet censorship legislation is a primary example. It will not achieve the claimed aim of protecting children, but it will infringe adults' rights to freedom of speech and the legislated principle in Australian law that adults should be free to read, see and hear what they want.

The legislation contravenes Australia's international obligations as a signatory to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR). The ICCPR forms Schedule 2 of the Human Rights and Equal Opportunity Commission Act 1986. Article 19 of the ICCPR states:

1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
   (a) For respect of the rights or reputations of others;
   (b) For the protection of national security or of public order, or of public health or morals.
http://www.austlii.edu.au/au/legis/cth/num_act/hraeoca1986512/sch2.html

EFA draws to attention that the legislation will infringe the rights of Australian citizens under clause 19(2) and is not "necessary" as set out in clause 19(3).

While Commonwealth and proposed NSW legislation will restrict Australian's freedom of speech and may inconvenience them in accessing content on the Internet, they will be wholly unsuccessful in terms of protection of "national security or of public order, or of public health or morals" since they have no effect on material available to Australians on off-shore web sites.

The Internet is a world-wide communication system which all Australian Governments must accept they cannot control, just as other Western democracies have. The restrictions on freedom to seek, receive and impart information and ideas of all kinds will not be mitigated by the tiny quantity of information on a global network that Australian Governments' censorship regime might successfully ban.


12. Conclusion

The Bill is clearly premature in its attempt to impose a classification regime on the Internet when there are no adequate procedures in place to classify such content (nor at a cost affordable to many ordinary Australians) and there are strong doubts that the use of film guidelines are appropriate to this medium.

Numerous difficulties are likely to arise in attempting to enforce the proposed law, including the matter of constitutional validity.

Moreover, the Bill is out of step with world opinion on Internet content regulation.

The physical location of Internet content is a matter of little relevance. A content provider in any Australian State or Territory can have content hosted elsewhere in Australia or any other country. Realistically, to deny Australian content hosts the right to host content legal and protected elsewhere is to make Australian sites uniquely disadvantaged in a global market.

EFA strongly supports the principle that content creators rather than carriage service providers should be responsible for online content, and that criminal culpability for such content should apply only to material that is globally and unequivocally recognised as illegal.

All commentators accept that there is some Internet content that is universally condemned, and some consider international efforts to eradicate it are capable of success. EFA submits that seeking to achieve global agreement on the definition would be an appropriate response by all Australian Governments intent on making an effective contribution to dealing with criminal content. Obviously, the narrowest definitions of illegal content are most likely to be successfully prohibited - a wide definition that includes material routinely available in other countries and protected as free speech in the United States (such as material classified R and X and much of material Refused Classification in Australia) would be pointless and unenforceable. International agencies such as Interpol have no interest in investigating erotica, nor the wide range of material classified "R"/"unsuitable for minors" under Australian censorship laws.

The oft-quoted issue of "protection of minors from exposure to material that may be harmful to them" invites debate over the means to that end. In the event that parents consider that filtering Internet content is a desirable alternative to adequately teaching minors to deal with all types of Internet content, this is best achieved with personally chosen software programs and services and proper supervision appropriate to age and maturity. The provisions of the Commonwealth BSA already require Internet Service Providers to provide their customers with an Approved Filter, that is, approved under the ISP Code of Practice registered by the Australian Broadcasting Authority. The increasing emergence of specialist content providers for children will reduce the need for supervision in some cases. Minors are not all impressionable victims nor hardened hackers, and parents are better placed than Governments to determine whether a problem exists with their child's use of the Internet. The development of a range of online services and market forces are a better means of giving parents control over their children's activities.

As President Clinton resolved, following the defeat of the Communications Decency Act, it is the role of the police to track down paedophiles and terrorists - and it is up to parents to supervise their child's use of the Internet.

Existing classification legislation and laws of general application enable State and Territory police to prosecute persons engaged in child abuse and terrorism who may use the Internet just as they use the telephone, mail and roads. If there is a problem in enforcing existing laws, EFA contends that this is most likely to be associated with insufficient liaison between Commonwealth and State and Territory police forces and insufficient funding of police for training purposes and resources necessary to track down criminals who use the Internet. EFA recommends that funds proposed to be used in enacting and enforcing the proposed legislation to criminalise merely controversial speech instead be directed to increased funding of police forces.

Publication of globally agreed illegal material can already be prosecuted under existing NSW law (such as the Crimes Act Sec 578C - "Publishing child pornography and indecent articles"), and regulations concerning contentious material are inappropriate in a world where cultural differences cannot be easily reconciled.

Recommendation:
EFA recommends that legislative attempts to further regulate content on the Internet be abandoned.


13. Summary of Recommendations

This section provides a summary listing of recommendations made in the body of this submission.

Principal Recommendations

  1. EFA strongly recommends that the Bill be abandoned. The Bill is profoundly flawed and cannot be amended in a way that would result in legislation that is reasonably appropriate and adapted to serve a legitimate end. In addition, the constitutional validity of the proposed law is highly doubtful, relative to both concurrent consistent operation with the BSA and the nature of the Commonwealth/State "co-operative" classification scheme/s. (Sec 7.2)
  2. EFA also recommends that no alternative legislative attempt to further regulate content on the world-wide Internet be undertaken. Publication of globally agreed illegal material can already be prosecuted under existing NSW law, such as the Crimes Act Sec 578C - "Publishing child pornography and indecent articles". If NSW law enforcement authorities consider there is any enforcement difficulty in relation to material covered by the NSW Crimes Act made available on the Internet, this is a matter for law reform of that Act of an appropriately adapted nature.

Other Recommendations

The following recommendations are put forward in the event that the Committee, Government and/or Parliament fail to comprehend the overall flaws in the proposed legislation. These recommendations are intended to address the worst excesses of the Bill. At the very least, serious criminal justice issues must be addressed and resolved. EFA emphasises, however, that even if all recommendations below were implemented, these would not result in legislation that is reasonably appropriate and adapted to serve a legitimate end.

  1. That the Bill be amended to exclude criminal offences for making available textual information via email, mailing lists, newsgroups, chat boards and bulletin boards, whether archived/stored on the Internet or not. (Sec 5)

  2. That the Bill be amended to state when and where the offence of "make available or supply" occurs. (Sec 7)

  3. That offences relative to "matter unsuitable for minors", i.e. material that is or would be classified "R", be deleted. (Sec 8.3 and Sec 10)

  4. If the Committee, Government and/or Parliament fail to comprehend the broad reach of the "R" classification and the proposed legislation is to remain in a form that criminalises making available "matter unsuitable for minors" on the world wide Internet:

    That in Clause 45D(1) the words "to another person" be replaced with "to a minor", to ensure that content providers will not find themselves subject to criminal proceedings for making available matter unsuitable for minors to adults. (Sec 6.1.1)

  5. If the NSW legislation is to remain in a form that reverses the onus of proof in relation to a defence of an approved restricted access system:

    That Clause 45D(2) be deleted and replaced with the following:

    "(2) It is a defence to a prosecution for an offence against this section to prove that -
    (a) an approved restricted access system operated, at the time of the offence, in relation to access by means of the online service to the matter unsuitable for minors; or
    (b) the defendant intended, and had taken reasonable steps to ensure, that such a system would so operate and any failure of the system to so operate did not result from any act or omission of the defendant".

    It should be noted, however, that the above clause may not be adequate because the NSW Bill does not make clear what is meant by "at the time of the offence". This issue, as discussed in Section 6.5, should be addressed and resolved. (Sec 6.5)

  6. That Clause 45C, or the definition of "objectionable matter", be amended (or other changes made) so that material that is legal to sell from shops in NSW is also legal to make available to adults online. (Sec 6.1.2)

  7. That the references to advertisements be deleted from Schedule 2 of the Bill,

    OR, if the legislature is determined to refer to "advertisements":

    That the definition of "matter unsuitable for minors" in the Bill be amended by adding after "comprising moving images" the words "that are unsuitable for minors", to avoid proscribing making available advertisements online that do not contain any material unsuitable for minors. (Sec 6.1.3)

    AND

    That Item (c) of the definition of "objectionable material" be replaced with:

    "an advertisement for a film or computer game that is classified X or RC". (Sec 6.3)

  8. That the definition of "objectionable matter" be amended to exclude material that is or would be classified "X" and if provision of such material is to be regulated by criminal law, it be included in a separate category, titled "non-violent sexually explicit matter", that is not illegal to make available to adults who wish to view it on the Internet. (Sec 8.4)

  9. That the legislation be amended to ensure prosecution proceedings in relation to alleged offences of making available various "matter" online cannot be commenced until the matter has been classified, either:

    That Clause 59 of the existing Act be amended by insertion of the words "Internet content" in every instance where the words "film, publication or computer game" presently appear

    OR

    That a new clause be inserted in Schedule 2 of the Bill, similar to Clause 59. (Sec 6.2)

  10. In Clause 45B(2) after the words "an offence to" insert the words "make available or". (Sec 9.1)

  11. That either the existing Act or Schedule 2 of the Bill be amended to ensure that prosecutions in relation to "films"/Internet content cannot be commenced under pre-existing parts of the Classification Act, for example, to ensure:
    • that persons who merely facilitate access to an online service (such as librarians and teachers) and are intended to be protected from prosecution by Clause 45B(3) of Schedule 2 cannot be prosecuted for offences prescribed in other parts of the Act. (Sec 9.2.1)

    • that parents and guardians cannot be prosecuted as a result of material on the world wide Internet, that would be classified X or RC, being inadvertently accessed and screened in their home in the presence of minors. (Sec 9.2.2)

    • that persons who sell unclassified newspaper articles, books and magazines, etc, via publication of the information on web pages for downloading, cannot be prosecuted for sale of unclassified "films"/web pages. (Sec 9.2.3)

  12. That the Committee seek to obtain clear answers from the Office of Film and Literature Classification in relation to the matters raised in Section 8 and make such answers, whether clear or not, publicly available. (Sec 8)

    AND

    That the Bill not commence operation until the OFLC has documented, and made publicly available, information concerning their procedures and fee structure for classification of Internet content that clearly shows they are able to reliably, and at reasonable cost, classify Internet content for persons who wish to be sure they would not infringe the law in making particular material available online.

  13. That the Committee seek information from the NSW Police Force, or the NSW Director of Public Prosecutions, regarding any definitional problems, or classification fee cost issues, that result in computer generated images being classified as publications (instead of as films) for the purpose of NSW criminal proceedings. (Sec 7.1.3)

    AND

    That the Bill not commence operation (nor any similar legislation be introduced) before any such definitional problems and related issues have been resolved and appropriate amendments made. (Sec 7.1.3)


14. References