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Censorship in Australia: Regulating the Internet and Other Recent Developments

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Censorship in Australia: Regulating the Internet and Other Recent Developments NSW PARLIAMENTARY LIBRARY RESEARCH SERVICE Censorship in Australia: Regulating the Internet and other recent developments by Gareth Griffith Briefing Paper No 4/02 RELATED PUBLICATIONS C Censorship Law: Issues & Developments - Briefing Paper No. 3/99 C Censorship: a Review of Contemporary Issues - Background Paper No. 1996/1 C Censorship: Law and Administration – Background Paper 1993/1 ISSN 1325-5142 ISBN 0 7313 17076 March 2002 8 2002 Except to the extent of the uses permitted under the Copyright Act 1968, no part of this document may be reproduced or transmitted in any form or by any means including information storage and retrieval systems, with the prior written consent from the Librarian, New South Wales Parliamentary Library, other than by Members of the New South Wales Parliament in the course of their official duties. NSW PARLIAMENTARY LIBRARY RESEARCH SERVICE David Clune (MA, PhD, Dip Lib), Manager ............................................ (02) 9230 2484 Gareth Griffith (BSc (Econ) (Hons), LLB (Hons), PhD), Senior Research Officer, Politics and Government / Law......................... (02) 9230 2356 Rachel Callinan (BA, LLB), Research Officer, Law................................. (02) 9230 2768 Rowena Johns (BA (Hons), LLB), Research Officer, Law....................... (02) 9230 2003 Roza Lozusic (BA, LLB), Research Officer, Law.................................... (02) 9230 3085 Stewart Smith (BSc (Hons), MELGL), Research Officer, Environment ... (02) 9230 2798 John Wilkinson (BA (Hons), MA), Research Officer, Economics ............ (02) 9230 2006 Should Members or their staff require further information about this publication please contact the author. Information about Research Publications can be found on the Internet at: www.parliament.nsw.gov.au/WEB_FEED/PHWebContent.nsf/PHPages/LibraryPublications CONTENTS EXECUTIVE SUMMARY 1. INTRODUCTION ................................................................................................... 1 2. WHAT’S IN A NAME? CENSORSHIP OR CLASSIFICATION? .......................... 2 3. CENSORSHIP IN AUSTRALIA BEFORE 1996..................................................... 4 3.1 Overview....................................................................................................... 4 3.2 Landmark developments ................................................................................ 5 3.3 The community standards test........................................................................ 5 3.4 Reform of film censorship.............................................................................. 6 3.5 Reform of literature censorship ...................................................................... 7 3.6 Legislative reform in 1983-84 ........................................................................ 8 3.7 The ACT Ordinance ...................................................................................... 9 3.8 Legislative reform in the States .................................................................... 10 3.9 A complex network of laws ......................................................................... 10 3.10 Classification guidelines ............................................................................... 11 3.11 Consumer advice ......................................................................................... 11 3.12 Computer Games......................................................................................... 12 3.13 Comment..................................................................................................... 12 4. CENSORSHIP IN AUSTRALIA AFTER 1996 ..................................................... 13 4.1 The ALRC report on censorship procedure.................................................. 13 4.2 The Commonwealth Classification Act 1995 – administrative reform ........... 13 4.3 The Commonwealth Classification Act 1995 – the classification system ....... 14 4.4 A national uniform system?.......................................................................... 17 4.5 Legislation in the States and Territories ....................................................... 18 4.6 Prohibited imports ....................................................................................... 19 4.7 The regulation of TV content....................................................................... 19 5. INTERNET CONTENT REGULATION IN AUSTRALIA................................... 22 5.1 Overview..................................................................................................... 22 5.2 Background developments........................................................................... 22 5.3 The ABA scheme......................................................................................... 23 5.4 Internet Industry Association codes of practice ............................................ 25 5.5 The role of the Classification Board ............................................................. 25 5.6 The role of NetAlert .................................................................................... 26 5.7 Reporting on the scheme.............................................................................. 27 5.8 Comments on the scheme............................................................................. 28 5.9 The transparency of the scheme ................................................................... 30 5.10 Internet content regulation – State laws ....................................................... 31 5.11 Western Australia and the Northern Territory .............................................. 31 5.12 Victoria ....................................................................................................... 32 5.13 Internet content regulation and the criminal law in NSW.............................. 33 6. THE CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) ENFORCEMENT AMENDMENT BILL 2001 (NSW)......................................... 35 6.1 Overview..................................................................................................... 35 6.2 Background to Internet content regulation in NSW...................................... 36 6.3 The South Australian On-Line Services Bill 2001......................................... 37 6.4 Summary of proposed Part 5A (online content regulation) ........................... 37 6.5 Arguments for and against in the South Australian Report ........................... 41 6.6 Part 5A and existing criminal laws................................................................ 42 6.7 Policy objectives of Part 5A– child protection, uniformity and consistency ... 44 6.8 The ‘adult themes’ debate............................................................................ 46 6.9 Judging online material by the standards applicable to films and computer games .......................................................................................................... 47 6.10 Comment..................................................................................................... 48 7. OTHER ISSUES AND DEVELOPMENTS........................................................... 48 7.1 Convergence and the review of classification guidelines............................... 48 7.2 The ‘X’ classification for films ..................................................................... 49 7.3 Community assessment panels...................................................................... 50 7.4 Standing to appeal ....................................................................................... 51 7.5 R v Hughes and the question of constitutional validity.................................. 52 8. CONCLUSION ..................................................................................................... 53 APPENDIX A Schedule 2, Amendments relating to on-line services. Classification (Publications, Films and Computer Games) Enforcement Amendment Bill 2001 APPENDIX B National Classification Code APPENDIX C Analysis of issues raised in evidence Parliament of South Australia Report of the Select Committee on The Classification (Publications, Films and Computer Games) (Miscellaneous) Amendment Bill (No. 2) 2001 Censorship in Australia: Regulating the Internet and other recent developments EXECUTIVE SUMMARY The Classification (Publications, Films and Computer Games) Enforcement Amendment Bill 2001 was passed by the Legislative Council on 4 December 2001. The next day the Attorney General, the Hon Bon Debus MP, announced that, owing mainly to concerns about the ‘scope and enforceability of the online provisions’, he would refer the Bill to the Legislative Council’s Standing Committee on Social Issues. This paper presents a background to the main issue arising from the Bill, namely the regulation of Internet content, by placing it in the broader context of censorship law administration in Australia. The paper’s main findings are as follows: · Before the current censorship system was established in 1996 Australian censorship law was a complex network consisting of federal Customs legislation, the ACT Classification of Publications Ordinance 1983, plus a plethora of State and Territory laws. This diversity reflected the fact that, although the Commonwealth can use its customs powers to regulate what is imported into Australia, it does not have a direct head of power to deal with censorship. Whatever degree of uniformity has been achieved therefore has always been the product of inter-government cooperation. Under this
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