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Censorship in Australia: Regulating the Internet and other recent developments

Censorship in Australia: Regulating the Internet and other recent developments

Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No. 04/2002 by Gareth Griffith

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 scheme of things, enforcement has always remained a State and Territory responsibility (p.4).
  • Two landmark developments inaugurating the modern era of censorship in Australia were: the 1969 High Court decision in Crowe v Graham (1969) 121 CLR 375; and the reforms introduced in 1971 by Don Chipp, Commonwealth Minister for Customs and Excise (1969-1972), and developed under the Whitlam Government (p 5).
  • The underlying philosophy behind these reforms was that: adults are entitled to read, hear and see what they wish in private and in public; people should not be exposed to unsolicited material offensive to them; and children must be adequately protected from material likely to harm or disturb them. A fourth principle, enunciated by Chipp in 1970, was that 'censorship should be open to public scrutiny' (p 5).
  • By 1973 the Film Censorship Board was a full-time 9 member statutory Board. An Annual Report was first published in 1980. In 1986 the part-time Films Board of Review also reported on its activities and, in the following year, its decisions were published in full in the Annual Report. In 1988 the Film Censorship Board was incorporated for administrative purposes into the Office of Film and Literature Classification (OFLC). The Films Board of Review (re-titled the Film and Literature Board of Review in 1990) received secretarial support from the OFLC (p 6).
  • Only in 1996 was literature censorship, prior to appeal, made the responsibility of a statutory Board - the new Classification Board (p 8).
  • A third reform landmark was the 1983-84 legislative package based, at the federal level, on the ACT Ordinance. The Ordinance provided for a scheme of classification covering both films and literature. Literature remained a voluntary scheme, whereas the classification of films and videos was compulsory (p 8).
  • A separate classification system, with a distinct set of guidelines, was introduced in 1994 for computer games. No 'R18+' classification applied for computer games (p 12).
  • The Australian Law Reform Commission's 1991 report, Censorship Procedure, formed the basis of the new national classification scheme under the Classification (Publications, Films and Computer Games) Act 1995 (Cth). It also formed the basis of the enforcement legislation subsequently enacted in the States (p 13).
  • The national scheme commenced on 1 January 1996. It established a Classification Board in place of the former Film Censorship Board and a Classification Review Board in place of the Film and Literature Board of Review (p 13).
  • Under the national scheme classification decisions are to be made in accordance with a National Classification Code and Guidelines agreed to between Commonwealth and State and Territory censorship Ministers (p 14).
  • A number of jurisdictions have reserved the power to review decisions made under the national classification scheme. NSW is not one of these jurisdictions (pp 17-19).
  • Under the Broadcasting Services Act 1992 the classification regime for free-to-air commercial TV is largely based on self-regulation, under which the stations classify programs in accordance with the Australian Broadcasting Authority (ABA) approved Codes of Practice. Television programs (other than those for children) are classified by classification officers employed by the networks (p 20).
  • Neither commercial free-to-air television nor Pay TV is able to broadcast 'R' rated films in an unmodified form (p 20).
  • The national broadcasters, the ABC and SBS, are also required to develop Codes of Practice which are to be notified to the ABA but not registered (p 21).
  • The ABA is also the key Commonwealth agency for the regulation of online content, established under the Broadcasting Services Amendment (OnLine Services) Act 1999 (Cth). That Act inserted Schedule 5 headed, 'Online Services' into the broadcasting legislation, which makes it clear that the Commonwealth scheme administered by the ABA regulates Internet Service Providers (ISPs) and Internet Content Hosts (ICHs). It does not regulate: producers of content; or persons who upload or access content (p 22).
  • Online content creators and end users are to be regulated instead by a combination of State and Territory online enforcement laws and the criminal laws of the various Australian jurisdictions. The current NSW Bill is in fact this State's response to the agreed policy of formulating model online provisions relevant to 'producers of online content'. This is in similar terms to the South Australian Classification (Publications, Films and Computer Games) (Miscellaneous) Amendment Bill (No 2) 2001. Both Bills reflect, in a modified form, the model online content provisions released for public consultation in 1999 by the censorship Ministers (p 22).
  • Before the Commonwealth enacted its online legislation in 1999, three jurisdictions had already passed their own legislative schema - Victoria, Western Australia and the Northern Territory (pp 32-33).
  • In terms of the existing criminal law in NSW, at least two sections of the Crimes Act 1900 are relevant in this context - section 578B (possession of child pornography) and section 578C (publishing child pornography and indecent articles) (pp 33-35).
  • Under the current NSW Bill 'Part 5A On-line services' would be inserted into the Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW) (p 36).
  • The current NSW Bill would create two new offences: (a) making available or supplying objectionable matter on on-line service; and (b) making available, or supplying, to another person, any matter unsuitable for minors (pp 38-41).
  • The main policy objectives behind the Bill are: the protection of children; the establishment of a uniform system of criminal laws in respect to online content; and the consistent regulation of material on- and offline (pp 44-46).

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