Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Ageing, Disabilities and Carers) Share this | Link to this | Hansard source

I rise to speak to the Communications Legislation Amendment (Content Services) Bill 2007. This bill is essentially designed to amend the Broadcasting Services Act 1992 to establish a new regulatory framework for live internet content, mobile content and convergent devices, such as mobile phones and other mobile communications devices that act as multimedia platforms and can deliver audiovisual content, so that children are protected from exposure to inappropriate or harmful content delivered via such devices. The bill will also amend the Telecommunications (Consumer Protection and Service Standards) Act 1999 to include the Indian Ocean territories of Christmas Island and the Cocos islands in reviews by the Regional Telecommunications Independent Review Committee. I might leave my contribution at that point as a little introduction. I understand that our shadow minister Senator Conroy is going to seek to incorporate his speech and that Senator Wortley is keen to make a contribution.

Dana Wortley (SA, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak on the Communications Legislation Amendment (Content Services) Bill 2007. This bill is intended to amend the Broadcasting Services Act 1992 so as to establish a new regulatory framework for live internet and mobile content and convergent devices, including 3G mobile phones and other mobile communications devices that act as multimedia platforms and are able to deliver audiovisual content, so that our children are protected from exposure to inappropriate or harmful content delivered via such devices. So the purpose of this bill is essentially to protect minors from damaging content so delivered, and this purpose is to be achieved by way of a coregulatory approach on the part of government and industry participants. It will also see amendments to the Telecommunications (Consumer Protection and Service Standards) Act 1999.

Labor supports the general intent of the bill. Labor has stated unequivocally that the protection of children from exposure to violent, pornographic, harmful and otherwise inappropriate material, whether via the internet or other convergent technologies, is paramount. Labor is committed to the protection of minors from damaging online content. All present in this place recognise the common ground on which this commitment is based: that young and vulnerable children must be protected from inappropriate and harmful content available on the internet and via mobile phones and other technologies.

This bill is based on the premise that clearly consumers are increasingly accessing avenues of information and entertainment through mobile phones and subscription internet sites. Mobile phones and other hand-held devices offer access to a range of media-rich services, including broadcasting, internet and telephone content. The scale of these related technologies is demonstrated by international research which, on the most recent data, puts the number of mobile phone subscribers globally at in excess of two billion; and the most recent data for mobile phone subscribers in Australia estimates the number to be more than 18 million. The adoption rate has been phenomenal, providing users with access to music, video, games, internet, SMS and video messages, to name just a few. In relation to the internet, there are in Australia 6.43 million active internet subscribers. A breakdown of this figure shows there are 761,000 business and government subscribers—this is subscribers, not users—and more than 5.6 million households that subscribe to the internet, with a varying number of users in each household having access to live streamed videos, chat rooms, blogs, video-file sharing and virtual worlds.

The benefits of such services to consumers and, through the creation of new commercial potentials, to carriage service providers and content service providers are enormous. There is also enormous potential for the dissemination of harmful, exploitative or otherwise offensive material, particularly to minors. Gone are the days when parents simply changed channels or turned off the television or radio if they considered broadcast material to be inappropriate in the context of their particular family circumstances and values.

This bill establishes a framework where content will be prohibited over the internet and on other convergent devices under certain circumstances including: when it has been classified RC or X18+ by the Classification Board; when it has been classified R18+ and access to it is not subject to an age verification system; and when it has been classified MA15+ and it has been provided by a commercial content provider, but it is not a news or a current affairs service, or it does not consist of text or still images, and it is not subject to an age verification system. This bill proposes that when such ephemeral content is accessed on a commercial basis it should be regulated via mechanisms that include pre-provision assessment, access restrictions or outright prohibition, and complaints protocols. Stored content will be similarly liable to regulation. There will be a significantly expanded role for the Australian Communications and Media Authority to include registration and approval of industry codes of practice, the determination of industry standards and service provider rules and the potential for imposition of penalties should a content provider fail to comply with a notice issued by the authority.

The Senate Standing Committee on Environment, Communications, Information Technology and the Arts, which was recently charged with the role of examining this bill, accurately stated that industry and consumer groups that furnished submissions to its inquiry were generally supportive of the bill’s intent; however, it is important to note that each of these submissions articulated significant and specific concerns as to the bill’s terms and/or likely effect. Some submissions opposed the bill on civil liberties grounds or on the basis of general policy differences. Another submission looked to the needs of artists in setting out its concerns regarding the ambit of the proposed provisions. It submitted that the bill did not adequately take into account the needs of filmmakers and multimedia and digital artists.

ALP senators submitted a minority report highlighting some of the major concerns. They identified a number of issues, including the fact that the bill does not prevent prohibited material from being accessed through overseas content providers. A further issue was that content classified MA15+, which is now accessible to those aged 15 and over—for example, in movie previews—cannot be accessed from an Australian website without age verification. This would of course be problematic for minors between 15 and 17 years of age because credit cards are not available to those under the age of 18. A method of age verification would therefore need to be established. Other issues included: the fact that the bill would extend a prohibition to material rated RC and X18+, which would mean that this material could not be watched on the internet despite the fact that it would be legally available in some jurisdictions and could be legally purchased from other jurisdictions via mail order; that consultation with makers of content appeared to have been deficient; that there would be the potential for discrimination against artists using the convergent technologies for the creation and dissemination of artistic works including video art work, web and sound art, and short films; that the proposed mechanisms for furnishing a take-down notice to a hosting service that was hosting or was proposing to host content that was the same or largely similar to that identified in the notice, in their present form, would not be sufficiently certain for both the regulator and hosting services; that the reference to the provision of trained content assessors raised related questions as to the type and level of training required, the cost that would have to be borne and by what mechanism the cost would be met; and that the definition of ‘content service’, with its exemptions, is confusing and appears to confuse the roles of content service provider and of content carriage provider.

Labor support the intent of this bill but we are concerned that it may not be as effective as intended. It may also provide parents with a false sense of security because the bill only prevents children from accessing prohibited or potentially prohibited content when it is hosted on Australian sites. For children to be adequately protected today from accessing prohibited or potentially prohibited material via the internet, we must consider content filtering. Labor considers that this bill does not go far enough. Labor believes that we should make use of the available tools—including the use of internet service provider filtering—to protect Australian children from exposure to harmful and inappropriate internet content. A clean feed filtering service to homes, schools and public libraries can filter out Australian and overseas sites containing content that is harmful or inappropriate.

In conclusion, I draw attention to the fact that once again—as has so often been the case—Labor senators have formed the view, from the evidence, that submitting organisations were not allowed sufficient time to formulate and to furnish their views on the proposed provisions. Once again, this unseemly haste in dealing with a matter of significant complexity and importance demonstrates the government’s reckless and—if it is possible—increasingly blatant obsession with ensuring that its bills are passed without the benefit of proper and comprehensive external scrutiny. While Labor supports the intent of the bill, we emphasise the importance of realising that intent via a sound and reliable legislative framework.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I concur with the views that Senator Wortley has just put forward. I recognise that this is a growing and huge matter for debate. One only had to look at the Herald Sun on the weekend to confirm the concerns expressed by a lot of people in the community about the violence that passes for entertainment, no matter where you look. I was in Sydney on the weekend and I wanted to go to the pictures but it was very difficult to find a movie that was not predicated on the theme of violence. I was not going to pay $15 to be depressed about that.

However, the questions about the global culture of violence are ones that we are going to have to deal with. We will support any step along that road, and we support this legislation. But I expect that we are going to have to go into much more difficult territory to counter this culture of violence, before some sort of probity is brought into place to stop those people who want to capitalise on violence in order to make money and profit. They do our society no good.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I rise to speak on the Communications Legislation Amendment (Content Services) Bill 2007, which brings with it amendments to the Broadcasting Services Act 1992 and to the Telecommunications (Consumer Protection and Service Standards) Act 1999. The bill is far-reaching in both its intent and its design, and it builds on the government’s Online Content Scheme. It attempts to address community concerns about the ability of current regulation to prevent children and others from viewing harmful or inappropriate content over the internet and convergent technologies. In doing so, this bill attempts to draw together and address some of the key issues in Australia today: technology, how that technology is used and how to prevent it from adversely affecting our children.

This is no small task. Technology evolves rapidly. Mobile phones came into popular use in the early to mid-1990s. Since that time, they have become smaller and ‘smarter’. In addition to making telephone calls, mobile phones, in many instances, now allow users to browse the internet, take photos, send emails or listen to music. Similarly, the internet is another piece of modern technology that came into popular use in the early to mid-1990s and has evolved rapidly since that time. Over the last decade or more, the internet has opened viewers up to a world of entertainment such as live streamed videos, blogs, chat rooms, video file-sharing and virtual worlds, to name but a few. Such technology has delivered a great many benefits to society and to economies the world over. However, given the nature of the internet and the ability of users today to browse content on their computer or mobile phone on any conceivable subject, there is concern that some users—in particular, children—may be exposed to inappropriate and/or harmful material in doing so.

This bill aims to protect children from exposure to inappropriate and harmful material by regulating content services delivered over the internet and by convergent devices, such as 3G mobile phones. Labor supports the intent of this bill. Children are one of society’s most important assets and deserve our protection. Under the proposed framework set out in the bill, content must not be delivered or made available to the public where it is prohibited or potentially prohibited or must not be made available without the appropriate age verification systems, where they are required. Content will be prohibited over the internet and on other convergent devices if it has been classified RC or X18+ by the Classification Board; if it has been classified R18+ and access is not subject to an age verification system; and if it has been classified MA15+, is provided by a commercial content provider—but is not a news or current affairs service—does not consist of text or still images and is not subject to an age verification system. Content will be potentially prohibited content if it has not been classified by the Classification Board. However, if it were to be classified, there is a substantial likelihood that it would be prohibited content. These prohibitions and limitations also apply to live content streamed over the internet or other convergent devices. Content provided by commercial content providers that is yet to be classified must be assessed prior to it being provided by a trained content assessor. The trained content assessor must advise whether the service might be prohibited, and the service provider must then take the appropriate action or face penalties under the bill.

The aim of the bill, then, is clearly to make sure that children and other users of the internet and convergent technologies will not be subjected to prohibited, or potentially prohibited, content. The bill also acts to greatly expand the role of ACMA. Drawing on the ‘take-down model’ set out in the Online Content Scheme, the bill provides that ACMA may issue service providers with a take-down notice where service providers are hosting prohibited content in breach of the bill. The take-down notice directs the service provider to remove the prohibited content. Where a service provider broadcasts potentially prohibited content, ACMA may issue it with an interim take-down notice. An interim take-down notice directs the service provider to remove the potentially prohibited content until the Classification Board has classified the material. If the material is subsequently classified by the Classification Board as prohibited content, ACMA may issue the service provider with a final take-down notice. ACMA may also issue a service provider that has been the subject of an interim or final take-down notice with a special take-down notice where it is concerned that the service provider is hosting, or is intending to host, content that is the same as, or similar to, the earlier prohibited content.

Further, in the case of a service provider broadcasting prohibited or potentially prohibited live content, ACMA may issue it with an interim or final service-cessation notice. In the case of a service provider with an Australian connection hosting links to prohibited sites, ACMA may issue it with an interim or final links-deletion notice. Where a service provider fails to comply with a notice issued by ACMA under the bill, it may face civil or criminal penalties.

The bill continues the co-regulatory approach adopted by the government in relation to broadcasting services. Under the bill, content providers should develop codes of practice to address the means by which they will endeavour to meet their regulatory obligations. ACMA should make reasonable efforts to ensure that the codes are registered. ACMA may also step in where it considers industry codes are necessary to safeguard the community or deal with the conduct or performance of particular participants in the industry. Under the bill, complaints about content may be made to ACMA. ACMA will investigate any complaints made in relation to breaches of the bill as well as possible breaches of the code of practice requirements. ACMA may also launch investigations on its own initiative into issues such as access to, or provision of, certain content. Service providers may apply to the Administrative Appeals Tribunal for a review of decisions of ACMA related to take-down notices, service cessation notices, link deletion notices, the registration of industry codes and certain directions and determinations.

As I have stated, Labor supports the intent of this bill. Labor recognises that children are one of society’s most important assets. The things children see and experience today shape their future life experiences. Accordingly, Labor wishes for Australian children to have positive learning experiences so that they grow up to be confident and enriched young adults. It is for this reason that Labor is concerned that this bill, while espousing to protect children from harmful and inappropriate material, may not have its intended effect. Labor’s concern is that this bill is misleading Australian parents. The bill does prevent children from accessing prohibited or potentially prohibited content, but only when the prohibited or potentially prohibited content is hosted on an Australian site.

This bill does not protect children—or indeed anyone—from accessing harmful or inappropriate content from overseas content providers. As the internet is a global system, accessing such material, even with this bill in place, will be as simple as the touch of a few buttons. As such, this bill clearly falls short of its intended goal. The only way to truly protect children from accessing such material is by way of content filtering.

Labor has long supported ISP filtering as a means by which to protect Australian children from harmful or inappropriate content. A clean-feed filtering service to all households, schools and public libraries can filter out sites that contain harmful or inappropriate content such as pornography and violent material. As such, under a clean-feed filtering system, children will be protected from accessing inappropriate or harmful material hosted on both Australian and overseas sites.

Labor is also concerned that this bill poses an unnecessary restriction on content creators such as artists. Many artists today choose to use the internet or convergent technologies either as an artistic medium or as a means by which to disseminate their work. Many of these artists also create works that are thought provoking or even controversial and on subjects that may be considered prohibited or potentially prohibited content under this bill. Accordingly, this bill may unnecessarily censor artists using this medium. It would appear that the government did not adequately consult with content creators, such as artists, prior to the drafting of this bill. As a result, the bill may serve to disadvantage them. Australia has a thriving creative community. The potential impact of this bill upon the work of these artists and their livelihoods cannot and should not be overlooked.

It is for these reasons that Labor seeks to move a second reading amendment to this bill. Labor’s amendment intends to note the deficiencies in the bill which, while not fatal, have serious implications. Most notably, the bill will not protect children from accessing inappropriate or harmful material from sites hosted in countries other than Australia. The internet is a truly global network. Therefore, attempting, as this bill does, to regulate Australian content will have little impact when sites from other countries remain available for users to browse.

The internet and convergent technology such as 3G mobile phones have undoubtedly changed the way in which we communicate to others and also serve to act as new forums for entertainment. In today’s society, the use of such technology is growing. Labor, therefore, considers that it is in the interests of all Australians for the government to ensure that any regulation that may interfere with this technology, or how it is used, reflects the intent of the government in whole and not in part. I move:

At the end of the motion, add “but the Senate notes that:

             (a)    the Government failed to adequately consult content makers prior to the drafting of the bill;

             (b)    the Environment, Communications, Information Technology and the Arts Committee inquiry into the bill did not allow for sufficient time to consider the bill and draft submissions to the committee;     

             (c)    the bill will not prevent access to prohibited material from offshore service providers; and

             (d)    Labor believes that children should be protected from inappropriate or harmful material on the internet, however, Labor would prefer to regulate for this via ISP filtering, as set out in Labor’s ISP filtering policy”.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

To be cooperative I shall endeavour to be brief. The Communications Legislation Amendment (Content Services) Bill 2007 is a complex bill, as is often the case with this sort of regulatory framework, and because of time constraints I will not go into as much detail as I normally would. Everybody knows the history of this legislation, the genesis behind it and the need to try to regulate content services delivered over convergent devices such as broadband services to mobile handsets et cetera. There are a few key questions here. The first is: do we need to have a regulatory framework over those sorts of material and these sorts of devices? Given that we already have a regulatory framework in place, it seems reasonable to seek to extend the regulatory framework to other devices that are currently exempt from it.

The second question is whether the approach that has been put forward will work. That is a much more open question. Certainly there is a lot of strong opinion, some of which was put to the Senate inquiry, that suggests that the current setup with regard to the internet does not work terribly well. There is a very valid argument that having a framework in place gives people the assumption that content can be adequately controlled and contained, whether it is pornography, violence or other sorts of inappropriate material. If we have that framework there people assume that that means there are controls in place to regulate it adequately. If those controls do not actually work terribly effectively, then that can be counterproductive. People assume there is an effective mechanism in place and do not worry about doing anything further about it. If the mechanism does not actually work adequately, then not only does it not necessarily perform the task that it is intended for but it can create a false impression of security. There is a bit of an open debate there about how adequately it works and whether its inadequacies or limitations are such as to discredit the whole system.

That same debate can be carried over to the approach and mechanism that is being put forward here in this legislation. As I have stated, there are arguments on both sides with regard to that, and the workability is an issue as much as the principles behind it. Certainly some within the community and some who put forward submissions to the inquiry suggested that there were issues with regard to constraints on freedom of speech. That is an issued the Democrats have always taken very seriously.

We have always had a general approach that seeks to encourage minimum necessary censorship, but minimum necessary censorship does not mean no constraints or controls at all. Of course, there is the International Covenant on Civil and Political Rights, which guarantees freedom of expression. Article 19 states:

1. Everyone shall have the right to hold opinions without interference.

And:

2. Everyone shall have the right to freedom of expression;

But it should be emphasised that part of that article 19 of the convention also says that the right in paragraph 2:

... 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;

Certainly we already as a parliament and I think as a community more broadly strongly support constraints on freedom of speech in regard to certain types of advertising—for example, cigarette advertising. Indeed, the Democrats pioneered greater controls and constraints on cigarette advertising. I think we could go a little bit further, frankly, in terms of cigarette sponsorship and those sorts of things. So our own approach has shown that we also support limitations on those rights at certain times. I do think that needs to be emphasised.

A lot of the focus around this is on pornography, and that always excites people a lot and generates a lot of debate around the place. I am much more concerned about the degree of violence that is on a lot of standard forms of the media, let alone convergent media. But there certainly are issues. In the same way as most people would believe that exposure of children to excessive violence is potentially harmful, exposure of children to explicit pornography is also potentially harmful. There is a case to be made. But the big question mark is whether or not the framework that is in place here will work adequately to enable that to happen. In large part it tacks itself onto the existing framework, so whatever limitations there are or are not on the existing framework are to some extent added to by the new framework and the new components that are put in place through this legislation.

As we are dealing with convergent and developing technology, it also means that we are continually having to assess how workable it is and continuing to play catch-up. It is certainly an area that will need continual monitoring. That is something that is necessary. The other thing that needs monitoring is the issues surrounding the wisdom or otherwise of how expansive a level of access we allow to some of the material and certain types of material that this framework seeks to regulate. Where do we draw those lines? I guess that is the ongoing debate that we need to have.

Helen Coonan (NSW, Liberal Party, Minister for Communications, Information Technology and the Arts) Share this | Link to this | Hansard source

I would like to thank senators for their contribution to this debate. I would also like to record my thanks to key industry stakeholders for their valuable contributions towards the development of this important legislation.

The development of a comprehensive and practical content regulation framework is a significant challenge, as speakers have noted, in an era of convergence and new emerging technologies and services. The introduction of new services like 3G and video services through mobile phones means that our platform-specific regulations are becoming increasingly strained as they are applied to new media forms. The Communications Legislation Amendment (Content Services) Bill 2007 will extend the current safeguards that apply to content delivered over the internet or television to content delivered over convergent devices, including live, streamed services. Content rated X18+ and content which is refused classification will be prohibited. Content classified as R18+ must be provided with appropriate access restrictions to limit the availability of this material to adults. Material made available on a commercial basis for a fee and which is classified as MA15+ must also be provided with age restrictions.

The new legislation will also regulate the online distribution of electronic editions of print publications. Material which has been classified restricted category 1 or restricted category 2 or refused classification will be prohibited—for example, adult magazines currently available in some newsagents and adult shops. Mechanisms will be established to enable the regulator to take action to direct material be taken down or access removed where it is provided in contravention of the rule. Strong sanctions will be introduced for noncompliance, including criminal and civil penalties.

Under this bill the government will also allow for industry coregulation as a means of providing for regulatory frameworks to evolve and adapt with the technologies and services which they regulate. We believe that the content services bill has struck the right balance between protecting children from harmful and inappropriate content, which of course we wholeheartedly support, whilst also allowing industry to develop new business models and utilise emerging technologies. The proposed legislation will form an important part of the government’s suite of initiatives designed to regulate online content and provide greater protection for children using new technologies.

The government opposes Labor’s second reading amendment, and it is appropriate that I place on record why. In terms of the issues raised in the amendment, first, the government has worked closely with all key stakeholders in the development of this legislation, including content developers. An exposure draft of the bill was circulated to key industry stakeholders in late November 2006 and provided a wide range of interested parties with an opportunity to comment. That has included content developers and suppliers, mobile phone companies, broadcasters and major internet portal operators and publishers. The process was subsequently extended into early ’07. Significant modifications were made to the initial draft of the bill to take account of the responses received from key industry stakeholders. A number of these issues have also been the subject of further discussions between the government and key stakeholders. The amendments to the content services bill which I will be seeking to move are designed to address technical matters that have been identified by the Senate committee in its report and to some extent by industry stakeholders.

The issue that I want to address that Senator Conroy went into some detail on was the prevention of access to prohibited material from offshore providers. The bill provides new safeguards to protect consumers from inappropriate or harmful material on convergence devices, such as 3G mobile phones, and services available via subscription internet portals. It will achieve this by extending the existing regulatory framework to regulate live, streamed content services, services which provide links to content, and include stronger obligations where these services are provided as commercial content services.

In the case of overseas content and services, the Australian government has limited jurisdiction, but there a number of measures that can be applied in such circumstances. The Australian Communications and Media Authority, ACMA, is able to place on a blacklist the details of the locations—that is, the URLs—of prohibited content from offshore sites which it provides to the makers of certain internet content filters to block access. ACMA must also, if it considers the content is of a sufficiently serious nature, such as pornographic material involving children, refer the issue to the Australian Federal Police. ACMA and the AFP have also formally agreed that, where possible, ACMA should refer prohibited content hosted overseas to the international Association of Internet Hotline Providers, an association of 29 accredited internet hotlines from 26 countries in Europe, Asia and North America.

Further, the AFP’s Online Child Sex Exploitation Team, which was launched in March 2005, was created to provide the AFP with national assessment and coordination capability for internet and national referrals of child pornography. The clean-feed system has a number of defects, which I have gone into before. So for all of those reasons, and because of its limitations, it would not have, for instance, exposed the appalling case that came to attention yesterday, and we do not think it is appropriate to adopt it as a commercial or a government proposition. For those reasons, we will be opposing the second reading amendment.

Question negatived.

Original question agreed to.

Bill read a second time.

Ordered that consideration of this bill in Committee of the Whole be made an order of the day for a later hour.