Minority Report by Senator Stott-Despoja

1. Executive summary

1.1 The Australian Democrats do not advocate unsuitable on-line material being made available to minors.

1.2 We oppose the restriction of adult access to material that would generally be acceptable by reasonable adults.

1.3 We believe the debate should extend to cover issues such as privacy, defamation, vilification, and that a range of other consumer and community concerns must also be considered.

1.4 There seems to be some confusion, some practical difficulties and some overlap in which areas Commonwealth legislation may and should be applied.

1.5 Financial penalties may not be the only or appropriate penalty.

1.6 The adoption of "good Samaritan" clauses would need to be examined in an Australian context.

1.7 To provide certainty to this debate we submit it may be appropriate to define "on-line services" and we submit that legality may be determined or considered according to the test of "offensiveness" as set out in the Crimes Act 1914 (Commonwealth).

1.8 We are particularly concerned about civil liberties issues raised by law enforcement agencies investigating members of the community without reason and with exceptional powers.

1.9 Retailers and service providers should be encouraged to provide information to consumers on blocking and filtering devices, etc..

1.10 We support:

(a) an independent complaints handling body which is adequately resourced, has powers to investigate complaints and be empowered to enforce its decision(s);

(b) codes of practice;

(d) the commitment of funding to accompany the implementation of any regulatory measures adopted to provide information for on-line service users, to make them aware of existing legislation and their legal obligations;

(e) any community education campaign that is conducted to encourage the responsible use of on-line services;

(f) any scheme for labelling on-line content that takes into account Australian cultural values and the principles that govern the existing classification scheme; and

(g) examination of the international experience in attempts to regulate on-line services in Australia.

2. General statements

2.1 On-Line services are a rapidly developing forum for the exchange of information via on-line electronic means. These communications are in various forms and represent innovation, opportunity and a means of information, education and self-development.

2.2 On-Line technology has enormous potential in all areas of our lives. Our task as law makers is to ensure that we adopt regulatory measures where necessary, and that those measures limit the communications only to the extent intended by the law makers.

2.3 Laws should not be passed which will stifle innovation and development which have the potential to result in wealth, jobs and improved lifestyles.

2.4 Our existing laws have evolved over a considerable period of time to suit the particular needs of our community. These laws have breadth and purpose which should not be ignored in developing new regulatory schemes to deal with new technologies.

2.5 Media and media content raise complex issues which require consideration and careful regulation. The Australian Democrats are particularly cautious about any proposals to impose further regulatory measures on access to the media.

2.6 We also believe the debate should extend to cover issues in addition to adult material and pornography. Issues such as privacy, defamation, vilification, and a range of other consumer and community concerns must also be considered.

2.7 The regulation of on-line services involves international practices and that focus should be considered. The international practice should not however, overtake our Australian values, culture and practices.

3. RC, R and X category material

3.1 The Australian Democrats do not advocate unsuitable on-line material being made available to minors.

3.2 We oppose the restriction of adult access to material that would generally be acceptable by reasonable adults.

3.3 We would oppose access to material that would be classified RC, that is material which:

(a) depicts, expresses or otherwise deals with matters of sex, drug misuse or addiction, crime , cruelty, violence or revolting or abhorrent phenomena in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should be classified RC;

(b) depict in a way that is likely to cause offence to a reasonable adult a person who is or who looks like a child under 16 (whether or not engaged in sexual activity); or

4. An independent complaints handling body

4.1 The Australian Democrats support independent complaints handling bodies where concerned and affected consumers can express their complaints, criticism and other relevant comments. Any complaints handling body should be adequately resourced, have powers to investigate complaints and be empowered to enforce its decision(s).

4.2 Further consideration should be given to the preferred model proposed by the Senate Select Committee on Community Standards Relevant to the Supply of Services Utilising Electronic Technologies ("the Committee") to ensure it meets the particular requirements of on-line complaints, has appropriate investigatory powers and sufficient enforcement powers.

4.3 Any complaints handling body might also establish an e-mail, telephone and facsimile hotline service to receive information about possible illegal material (including paedophilic material and child pornography) found by users on the Internet and other on-line services.

4.4 The jurisdiction of any complaints handling body would need to be considered.

5. Which laws?

5.1 The Australian Democrats submit that it may be appropriate for the Committee to determine in which areas the Commonwealth has legislative powers and which areas are covered by the States and Territories. There seems to be some confusion, some practical difficulties and overlap in which areas Commonwealth legislation may and should be applied. On-Line services are an example of a new technology that covers areas of responsibility involving both Commonwealth, State and Territory responsibilities. We note that on-line services cover the areas of content, telecommunications, broadcasting, commerce within and between States and Territories, etc.. In making recommendations the Committee should recognise these complex interactions.

5.2 The overlapping responsibilities of the Commonwealth, States and Territories may be best satisfied by consistent and uniform laws across Australia. The possibility that different laws apply in different regions of Australia is likely to provide considerable difficulties to both providers and consumers of on-line services.

6. Codes of Practice

6.1 The Australian Democrats submit that codes of practice should be enforceable and overseen by an independent body which is adequately resourced, have powers to investigate complaints and be empowered to enforce its decision(s).

6.2 While the Australian Democrats do not oppose codes of practice and particularly enforceable codes of practice, we are of the view that codes of practice as they apply to on-line services should not be introduced as a means of restricting the development and evolution of on-line services. Regulation in this area should not be used to stifle this rapidly developing technology.

6.3 If legislation is adopted which requires the codes of practice to be developed, then the on-line industry should not be the only participants in determining the make-up and content of the codes of practice. This process should include government, consumer and community groups.

7. Financial penalties for failure to comply with a code of practice

7.1 The Committee should considered further the issue of what are suitable penalties for the breach of codes of practice. It is submitted that penalty provisions in legislative instruments should be very carefully considered. We are of the view that $100 000 may be an excessive penalty (for example, the maximum penalty under section 17 of the Occupational Health and Safety (Commonwealth Employment) Act 1991 is $100 000 where an employer that is a Government Business Enterprise fails to take all reasonably practicable steps to ensure that persons at or near a workplace under the employer's control is exposed to a risk to their health or safety).

7.2 Financial penalties may not be the only or appropriate penalty.

8. Protection of ISPs from prosecution

8.1 This should be a matter for the Internet Service Provider ("the ISP") to determine in their contractual arrangements with the persons contracting with the ISP for their services. The adoption of "good Samaritan" clauses would need to be examined in an Australian context in order to satisfy Australian norms and values.

9. The development of reliable age verification procedures

9.1 The Australian Democrats support the development of reliable age verification procedures to protect minors. This extends to technological, regulatory and educational means.

9.2 All technological means possible should be made available and encouraged to assist parents, carers and others to manage access and use on-line services.

9.3 The Australian Democrats do not advocate on-line material which may be unsuitable for minors being available to minors. However, we are concerned that the solution to this may not lie only in a technological "fix". We are concerned that filters, sieves, etc. and other mechanical means (albeit electronically) should be considered, but they should not be the only solution. Care should also be taken that these technical means do not limit the future development and evolution of on-line services.

9.4 We are unsure whether the Australian Broadcasting Authority is the appropriate body to develop reliable age verification procedures. However, were such procedures are to be developed it would be necessary to ensure a community understanding and awareness of these procedures. A public education campaign may be appropriate.

9.5 The development of appropriate procedures is likely to satisfy many concerned community members and assist parents and other carers in supervising the children and charges in their care.

10. Amending State and Territory classification and censorship laws

10.1 To provide certainty to this debate the Australian Democrats submit it may be appropriate to define "on-line services". We understand this term and similar terms are defined in State legislation. We are concerned that present services may include telecommunications infrastructure, computer infrastructure and host computer servers, etc.. For example, if computer bulletin board systems are outside the definition of "on-line", then arguably a significant source of what might be considered "offensive" material will not be discussed or considered.

10.2 We are also concerned that one-to-one communications may need to be considered. Electronic mail between individuals should not be subject to the same limitations as material provided to broader groups of people via the internet and bulletin boards.

10.3 The Australian Democrats submit it is necessary to determine whether the Crimes Act 1914 (Commonwealth) already covers on-line services or the extent to which on-line services are presently covered. We understand the terms such as "offensive", as set out in section 85ZE of the Crimes Act, is a broad term to encompass and reflect community morals and values. This term has been held to be that which offends against a reasonable person's standard of good taste or good manners, which is a breach of the rules of courtesy, or runs contrary to commonly accepted rules, and may be ill advised or hurtful. The offence must be conscious and deliberate.

10.4 If an activity is sufficiently offensive to be criminal, there is arguably no need to subject that activity to censorship and further regulation.

10.5 We are of the view that a court or tribunal is likely to find child pornography, violent erotica, etc. illegal material for the purposes of the Crimes Act 1914. This material should be excluded.

10.6 If these mechanisms do not exist, then it may be appropriate to consider extending the Crimes Act 1914 (Commonwealth) so that "on-line" services are covered to the extent that they are "offensive".

11. Random audits by State and Territory police forces

11.1 This is an issue outside the scope of the Commonwealth Parliament. It is for the States and Territories to determine how their police forces undertake their tasks.

11.2 The Australian Democrats are particularly concerned about civil liberties issues raised by law enforcement agencies investigating members of the community without reason and with exceptional powers.

12. Funding an on-line advertising campaign

12.1 The Australian Democrats agree that the Commonwealth and States should commit funding to accompany the implementation of any regulatory measures adopted to provide information for on-line service users, to make them aware of existing legislation and their legal obligations.

13. Information to customers on blocking and filtering devices, etc.

13.1 Retailers and service providers should be encouraged to provide information to consumers on blocking and filtering devices and any other method that are or become available to manage, access and block out material they may not wish to access.

13.2 This information should be included in any contract between the service provider and the person paying for the service.

13.3 The Australian Democrats are of the view that most information provided to consumers which increase their choices and information about the products they use is beneficial. We also support any community education campaign that is conducted to encourage the responsible use of on-line services.

13.4 The use of blocking and filtering devices should not replace the responsibility of parents and others to supervise the use of on-line services by their children and charges.

14. Labelling on-line content

14.1 The Australian Democrats support the convening of an On-Line Labelling Task Force (to include representatives of the Office of Film and Literature Classification, representatives of the on-line services industry and other government, community and consumer groups) to design a scheme for labelling on-line content that takes into account Australian cultural values and the principles that govern the existing classification scheme.

14.2 We understand the existing classification scheme to be based on the guidelines for classification approved by Commonwealth, State and Territory Censorship Ministers in accordance with subsection 12(3) of the Classification (Publications, Films and Computer Games) Act 1995.

14.3 We would also encourage the government to develop international links to assist in the development of on-line labelling for material accessed from outside Australia.

15. International perspective

15.1 The Australian Democrats would encourage the Australian government to continue its discussions in international fora, with the aim of developing:

(a) co-operation between countries in developing protocols for pursuing criminal activities carried out through the use of computer on-line services;

(b) co-operation between countries in developing broadly consistent regulation of on-line services;

(d) the protection of various intellectual property rights in on-line services;

(e) the development of a privacy scheme that will ensure adequate protection of personal and commercial information exchanged and traded on-line; and

(f) the development of an adequate defamation scheme to protect users.

15.2 We would also encourage the examination of the international experience in attempts to regulate on-line services.

[Signed] Natasha Stott Despoja

Senator for South Australia

24 June 1997