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Thursday, 27 March 2003
Page: 13862


Ms JANN McFARLANE (9:15 PM) —I rise today to discuss the Communications Legislation Amendment Bill (No. 1) 2002. This bill essentially contains five schedules. Four of these are legitimate technical improvements of current federal communications legislation, which I will briefly summarise. However, before I do, I would like to take issue with the comments made by the member for Hinkler in his contribution earlier in this debate. The arguments presented by the member for Hinkler were shallow and superficial, just like the efforts of this government in the area of Internet pornography. I am glad the member for Hinkler has made these comments; it gives me an opportunity to educate him and other members opposite about the total failure of the government to make any significant impact in protecting us from this type of material. Unlike the member for Hinkler, I will relate a real life case to the House and demonstrate just how hypocritical the hollow rhetoric we heard earlier really is. I will show the House just how committed the ministers of this government are to applying the arguments of the member for Hinkler. They are so committed that it has taken three months since my representations to the minister to provide my constituent with absolutely nothing—no response at all. This inaction just shows what a shameless beat-up the contribution of the member for Hinkler really was. But back to the bill.

The first provision will effectively enhance the Australian Communications Authority's ability to provide written determinations defining expressions used in its legal instruments. This amendment is logical as it saves time and allows the ACA to get down to more serious matters rather than dealing with administrative difficulties. The third schedule, too, makes sense. This amendment allows for law enforcement bodies of either a Commonwealth or state origin to perform covert legal surveillance involving radio transmissions. The situation we currently experience is unworkable, and law enforcement officials rightfully have an expectation that every aspect of their work is considered legal in this country. To not introduce this amendment would be a hindrance to the dedicated people in Australian policing and law enforcement.

Schedule 4 simply ties up a loose end or, more specifically, ends the specially constituted Australian Communications Authority. In four years of operation, this organisation has not considered one carrier installation permit—its intended purpose. Removing this from Australian law is bland but necessary housekeeping. Finally, the fifth amendment deals with the role of the Telecommunications Industry Ombudsman and expands the position's powers slightly. This too makes sense, and I take no issue with it.

However, buried within this bill lies the second schedule—a crude attempt by the Howard government to cover its tracks in terms of Internet policy. The schedule exempts four government agencies from the Freedom of Information Act 1982: the Australian Broadcasting Authority, the Office of Film and Literature Classification, the Classification Board and the Classification Review Board. Should this bill be passed, a blanket FOI exemption is made for documents containing or information facilitating `offensive Internet content'. In short, this is appalling. Labor has strong concerns about the implications of this bill should it become law. The explanatory memorandum claims that FOI requests made for documents that enable access to a site containing offensive content frustrate the agencies specified in this bill. While I have every interest in the smooth operation of these agencies, I believe that this reasoning is nothing beyond a cop-out.

The real agenda here is the Howard government covering its own tracks. These agencies, with a particular emphasis on the ABA, have been key players in the implementation of the Howard government Internet censorship regime. Since its introduction, the regime has succeeded in not much more than pushing sites of inappropriate content overseas and further out of governmental control. This regime always has been and always will be unworkable. Labor opposed it upon introduction in 1999 and opposes it now. The best the Howard government can do to address the problem is to try to block the relevant information, rather than to fix the problem. The Howard government is treating the Australian Internet community with utter contempt if this schedule is adopted.

It comes as no surprise to me that the government is trying to block public scrutiny of this issue, as I have personally experienced the fumbling about that has come to symbolise the government's approach to Internet censorship. I hope that the member for Hinkler listens to this constituent's story and feels embarrassed about his earlier remarks. One of my constituents, Wendy Charnell, came to me late last year with a very serious problem in this area. In the months prior to contacting my office, Ms Charnell had received unsolicited child pornography in her electronic mail. These emails arrived almost daily and contained images and links to images of children being abused sexually and subjected to disgusting pornographic acts. Despite my constituent's efforts to unsubscribe to the self-described `service', the emails continued to arrive regularly.

Ms Charnell, alarmed by the material, approached iiNet, her Internet service provider, one of the largest carriers of home-users in Western Australia. After sharing her problem with the firm, they informed her that they would not filter her email from the material as it was not their legal obligation. She then approached the Western Australian Police Service to complain, without success. At this point the constituent, somewhat bewildered, approached my office. I believe that she is one of thousands of people in Australia who are in this awkward situation. Possession of child pornography is a serious crime, and rightfully so. If a law enforcement officer accessed the constituent's computer, Ms Charnell would be charged. In Western Australia, she could be imprisoned for five years. However, the ISP she pays to use would not be charged. Despite her efforts to prevent the flow of illegal material to her, Ms Charnell would still be chargeable under law.

The standard Howard government approach to Internet censorship dictates that any Internet sites deemed to have inappropriate material will be issued with a take-down notice. How does this help Ms Charnell? The emails, images and sites that are being emailed to her all originate overseas. Instead of a solution to her problem, Ms Charnell is left with the possibility of being charged for having—to quote the unsolicited emails—`real underage material', `nude little girls' and `rape' images. Understandably, Ms Charnell was worried about the situation. To address her concerns, I wrote on her behalf to the Attorney-General's office outlining this serious problem. The letter, dated 17 December 2002, did not receive attention from the Attorney-General's office until 22 January 2003. The letter my office received in response indicated that the matter was being forwarded on to the Hon. Senator Richard Alston's office, the Minister for Communications, Information Technology and the Arts. Let me reiterate that point. It took the Attorney-General's office over a month to respond and, in doing so, it decided that passing the buck was the most appropriate reaction to that situation. It took over a month to do nothing.

As I stand here—in March—I still await a response from the minister for communications. This is beyond belief. My office has been hounding the minister's office for the past three weeks for a reply but with no luck. My constituent is obviously distressed about her legal status. We live in one of the most Internet aware nations in the world, yet our legislation is inconsistent and full of holes. Five states or territories do not discriminate between possession and knowing possession of child pornography. Western Australia had a case go through the Supreme Court in 2001 that has provided some guidance, but Ms Charnell could be hauled through the legal system and have to prove that she did not solicit this material. Looking at her temporary Internet files would show that these files had been opened, and she would have to prove that she had not accessed this material willingly—a hardworking 61-year-old woman forced to prove she is not a pervert because of amateur policy making. This is a nationwide problem. Should my constituent cross the Nullarbor, she would be charged immediately in South Australia, New South Wales, Tasmania and the Northern Territory. Intent does not matter here.

I cannot believe this matter was forwarded from the Attorney-General's office. To state that this is not a legal matter is contrived and plain incorrect. The only solution here is standardisation. The Internet is a borderless medium. It is not slowed down by boundaries, be they geographical, political or anything else. I challenge any member of the government to stand up and say that they have never received unsolicited emails in their time as an Internet user. However, the government's inability to create a national standard on this matter suggests that they feel unsolicited illegal material cannot be emailed by these indecent people. Either force all carriers of data in Australia to try to filter email flow at a user's request or standardise the law to protect people like Ms Charnell.

We must remember that right now these holes not only endanger the innocent but also create attractive opportunities for those who willingly acquire child pornography. If an offender of this nature sees a legal precedent set in some states but not in others, surely this would present itself as an attractive means of circulating this disturbing material. The onus is upon the federal government to plug this leak. There must be people all over Australia like my constituent not wanting to speak out for fear of prosecution, waiting for something to be done. And while the various ministerial offices bounce letters from one to another, refusing to confront the issue, people like Ms Charnell continue to wait in fear.

Ms Charnell's problem is indicative of the government's contempt for serious Internet policy. Instead of sitting down and designing regimes that will actually fix the problem, this government has decided it would be easier to simply block the flow of information about the problem. The Labor Party vehemently disagrees with this gagging of agencies funded by taxpayers. I would like to remind Prime Minister Howard and Minister Alston that the ABA, the OFLC, the Classification Board and the Classification Review Board are agencies paid for by Australian citizens. Taxpayers, like any other form of consumer, have the right to see how their money is spent. The successful passage of this bill would ensure that, when it comes to the Internet, the taxpayer no longer has the right to know what the government will and will not let them see. Because of the disregard demonstrated by this government, people like Ms Charnell will not have their problems solved.

As it currently stands, FOI requests can be rejected by the ABA and the other agencies on a case by case basis. These decisions can be appealed through the Administrative Appeals Tribunal. I believe that this is a perfectly legitimate means of protecting sensitive information. If, in any case, release of information pertaining to offensive material should inhibit one of these agencies from doing its job, then by all means block the FOI request. However, to give a blanket exemption to the peak Internet censorship bodies is to allow them to be unaccountable.

I am not saying anything the Howard government has not already heard. One of the major Internet users groups in this country, Electronic Frontiers Australia, has been raising this matter with the government for a long time. However, these concerns are falling on seemingly deaf ears. I quote the Chairman of EFA, Irene Graham, who said:

It is disgraceful that the law fails to take into account the nature of the technology and so fails to protect ordinary Internet users from criminal proceedings concerning events that are beyond their control.

And what does the Minister for Communications, Information Technology and the Arts have to say about the organisation? In November 2002, he said, `We gave up on them a long time ago.' In reply, I say this to the Howard government: you gave up on the Internet a long time ago.

We on this side of the House refuse to give up on solving the problems of new mediums. Let us take advantage of what accountability is left in the Australian Internet censorship regime and use it to build credible processes and create a system of censorship that actually works. Instead of passing the buck and pushing offenders and viewable content offshore, let us work on getting the job done and eliminating illegal material. The poor policy making that continues to hinder the Internet in Australia must come to an end. The Labor Party is committed to a communications policy which would not legally strangle innocent Internet users and citizens but which would efficiently deal with the issue of censorship. How can Australia possibly be expected to continue as a leader in technology development and implementation when we have patchy laws that muddy the waters? Instead of trying to blindfold the Australian public, I implore the government to come up with real solutions.