19 October 2000

Telecommunications Legislation Amendment Bill 2000

Below is EFA's submission to the Senate ECITA Legislation Committee's inquiry.

19th October 2000

Senate ECITA Legislation Committee,
Parliament House,

Via email

Dear Ms Griffiths,

Re: Telecommunications Legislation Amendment Bill 2000

Thank you for the opportunity to comment on the Telecommunications Legislation Amendment Bill 2000 (“the Bill”). This submission is made on behalf of Electronic Frontiers Australia Inc (“EFA”) and is submitted with the authority and approval of the EFA Board.

EFA is a non-profit national organisation formed to protect and promote the civil liberties of users and operators of computer based communications systems. EFA was formed in January 1994 and incorporated under South Australian law in May 1994.

Our major goals are to advocate the amendment of laws and regulations in Australia and elsewhere (both current and proposed) which restrict free speech and unfettered access to information, 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.

The writer is presently a member of the Australian Domain Administration (“auDA”) Board of Directors, elected by the general membership as the authorised delegate of EFA. As such, EFA has a continuing interest in the management of the Australian domain name space and the principles upon which naming policies will be determined in the future. Further, EFA submits that competition in the provision of domain name services is a pressing need, and there is a compelling public interest in converting the historical delegations of domain name authority to an open, transparent and accountable system.

However, the Government’s actions in seeking passage of the Bill may well be subject to criticism, given that there is a public process underway to address competition and naming policies for Australian domains. Rather than demonstrating an understanding of the Internet, the proposed Bill demonstrates a fear of the Internet and a desire to control every aspect of it. If, as has been alleged, the Bill is only designed to be a stop-gap measure should auDA fail, then it is premature and unnecessary. To seek passage of such a Bill at this time indicates at best a propensity to threaten auDA into accepting policy dictates from the Government of the day, notwithstanding that an open and accountable public consultation process may well result in preferable outcomes.

Of particular concern is the proposed amendment to section 474(b) of the Telecommunications Act 1997. The section presently authorises the ACA to issue a determination if directed by the ACCC or if the ACA is of the opinion that the manager of electronic addressing is not acting in accordance with “generally accepted principles and standards”. The amendment removes an objective criterion and replaces it with an authorisation for the ACA to issue a determination if “the ACA considers that the person or association is not managing that kind of electronic addressing to the ACA’s satisfaction”. In our submission, this is a dangerous precedent and one that would adversely affect confidence in the integrity of the electronic addressing system. It opens up the potential for political interference in Internet addressing, and value judgements by the Minister as to what rules should apply. Since the ACA has the power to direct the manager of an electronic addressing system to “do, or refrain from doing, a specified act or thing” (under section 475(1)), this combination of powers may result in the Australian Government meddling in technical issues or making policies inconsistent with “generally accepted principles and standards”.

EFA submits that these amendments are unnecessary and a symptom of the Australian Government’s lack of commitment to Internet self-regulation. While public policy processes are presently undertaking the task of addressing necessary reforms in Internet addressing in Australia, it is disturbing to see the Government legislating “just in case” it disapproves of the outcome. At best, this legislation puts auDA on notice that the Government considers itself the final authority on Internet technical issues, irrespective of industry consensus and world’s best practice.

In our submission, this legislation is misconceived and unnecessary in the present circumstances. There is no urgency which would justify this legislation being presented to Parliament this year, and developments with the present auDA policy panels should establish by June 2001 a system for administering Internet domain names in Australia that would be a preferable outcome to one dictated by the Government. See for example the details of pending auDA public consultations at and .

When considering Internet regulation, Parliament ought to be wary of imposing laws inconsistent with the global nature of the Internet and determined without adequate consultation with Internet experts. Just as misconceived Internet censorship laws, attempts to meddle with broadband content and attempts to force ISPs to block gambling sites have earned Australia the tag “the global village idiot”, so too would attempts by politicians to dictate how Internet addressing should work. This is a matter for industry self-regulation, and political interference will discourage e-commerce, investment in Internet businesses and the development of electronic addressing policies that reflect world’s best practice.

It is time that Internet policy was set free from the shackles of broadcasting policy and the narrow interests of the Communications portfolio. In the United States, Internet policy is under the governance of the Department of Commerce, and as such policies are directed towards economic outcomes and rational consultation with industry. EFA submits that this proposed legislation shows that the Australian Government fears and distrusts the Internet, and such immaturity stamps Australia as an “old economy” rightly ignored by investors.

EFA is happy to expand on this submission by oral evidence or further written submission.

Kimberley Heitman, B.Juris, Llb, AACS,
Chair, Electronic Frontiers Australia Inc.