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Stott Despoja, Sen Natasha
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- Start of Business
- TELSTRA: SERVICES
- SOCIAL SECURITY: WELFARE REFORM
- UNITED NATIONS REFERENDUM: WESTERN SAHARA
- INTERNET CENSORSHIP
- PERSONAL EXPLANATIONS
- CUSTOMS LEGISLATION AMENDMENT BILL (No. 2) 1999
- VETERANS' AFFAIRS LEGISLATION AMENDMENT BILL (No. 1) 1999
QUESTIONS WITHOUT NOTICE
(Faulkner, Sen John, Hill, Sen Robert)
Hunter Region: Structural Adjustment Package
(Tierney, Sen John, Macdonald, Sen Ian)
Child Care: Funding
(Evans, Sen Chris, Newman, Sen Jocelyn)
Families: Government Policies
(Mason, Sen Brett, Newman, Sen Jocelyn)
Child Care: Planning
(Forshaw, Sen Michael, Newman, Sen Jocelyn)
Business Tax Reform: Capital Gains
(Lees, Sen Meg, Kemp, Sen Rod)
Child Care: Fees
(Gibbs, Sen Brenda, Newman, Sen Jocelyn)
Food Irradiation: Labelling
(Stott Despoja, Sen Natasha, Herron, Sen John)
Social Security: Welfare Reform
(Murphy, Sen Shayne, Newman, Sen Jocelyn)
Business Tax Reform: Capital Gains
(Gibson, Sen Brian, Alston, Sen Richard)
Office of the Status of Women: Funding
(Mackay, Sen Sue, Newman, Sen Jocelyn)
Business Tax Reform: Employment
(Crane, Sen Winston, Hill, Sen Robert)
Continence Aids Assistance Scheme
(Crowley, Sen Rosemary, Newman, Sen Jocelyn)
Criminal Investigations: Senate Debate
(Payne, Sen Marise, Vanstone, Sen Amanda)
Disability Access Strategy: Public Relations Budget
(McKiernan, Sen James, Newman, Sen Jocelyn)
- Sport: Funding
- ANSWERS TO QUESTIONS WITHOUT NOTICE
- BILLS RETURNED FROM THE HOUSE OF REPRESENTATIVES
- EXPORT FINANCE AND INSURANCE CORPORATION AMENDMENT BILL 1999
- INDIGENOUS EDUCATION
QUESTIONS ON NOTICE
Australian Advanced Air Traffic System Configuration Control Board: Establishment
(O'Brien, Sen Kerry, Macdonald, Sen Ian)
Airservices Australia: Legal Action Costs
(O'Brien, Sen Kerry, Macdonald, Sen Ian)
Aviation: Flightwest Airlines
(O'Brien, Sen Kerry, Macdonald, Sen Ian)
Goods and Services Tax: Department of Agriculture, Fisheries and Forestry
(Faulkner, Sen John, Alston, Sen Richard)
- Australian Advanced Air Traffic System Configuration Control Board: Establishment
Thursday, 30 September 1999
Senator STOTT DESPOJA (10:30 AM) —I should begin my remarks by responding directly to the claim of the Minister for Communications, Information Technology and the Arts that somehow the Australian Democrats or I would advocate unsuitable material being made available to minors—or anyone else for that matter—through the Internet. First and foremost, as the Democrats have said time and time again in relation to this debate, we do not advocate an entirely laissez-faire approach to regulation of Internet content but, all through this process—the debate leading up to the legislation, through that process, the committee et cetera—we have made clear that we have major concerns with both the mechanisms that have been proposed by the government and the extent of their interference in, say, legitimate expression of views and values. So it is unfortunate that, every time we have a debate similar to this, we need to make such an explanation for the purposes of government, but it is important to remind people that the Australian Democrats are not opposed outright to the idea of controlling access to objectionable Internet content. So that there is no confusion on that point, I will quote from the first two points—
Senator Alston —But you are no longer willing to repeal the legislation.
Senator STOTT DESPOJA —Mr Acting Deputy President, I did hear the minister in silence, so I hope the same courtesy can be extended. Okay, I will respond to the minister's interjection. I do not shy away from calling for the repeal of legislation that is undesirable or unworkable. I would quite happily see this government go back to the drawing board and get it right—
Senator Alston —Are you calling for its repeal or not?
Senator STOTT DESPOJA —I expressed regret at the time, through the committee process and through the debate in the chamber, that there was a haste applied to this process that is comparable to the process with no other legislation that we have seen in this place that was as complex or took into account so many forward looking issues. So I am not suggesting that there is no place for legislation; on the contrary. I just want to see better legislation in this place. Attempts to alleviate the worst aspects of that legislation and attempts to improve that legislation, as pointed out by Senator Bishop in his remarks, were pretty much roundly rejected by the government. So attempts by the Australian Democrats and the opposition were rejected, but we accept the realities of the situation—and that is that this legislation is not going to be repealed. That is why, in an attempt to show cross-party or a multiparty response to this debate, you have a motion that is jointly sponsored by Senator Bishop and me today.
I will return to the two opening points in the Australian Democrats minority report of the Senate Select Committee on Information Technologies inquiry into the Broadcasting Services Amendment (Online Services) Bill. The first point was:
1.1 The Australian Democrats do not advocate unsuitable Internet material being made available to minors.
That is in black and white. Secondly:
1.2 We oppose the restriction of adult access to material that would generally be acceptable to reasonable adults. We oppose the restriction of adult access to Internet content where that same content is available in other media.
That was another objection we had to the legislation—the idea that different media were treated differently. Also, the debate all along has often failed to recognise the distinction between what minors can access and what reasonable adults in our society should be able to access.
Subject to these two points, the Democrats' minority report continues to criticise the bill—as it then was—and the government's policy position as being undesirable and unworkable. It is unfortunate that this clarification is required every time we have this debate, but it seems that the government still have failed to understand this message. If they do understand this message, it is clear that they continue to adopt the fairly common practice of attacking the messenger. The Democrats are not opposed to content control, but we are opposed to the heavy-handed and inappropriate way in which the government have pursued their policy on this issue. I want to draw special attention to the government's political opportunism in pursuing this issue quite vigorously at the time they did—before the change of the balance of power in the Senate. Perhaps that was the reason for their haste and that is why we have flawed legislation.
With those clarifications to one side, I will turn to the specific points that are mentioned in the motion before us. As I said, this is a multiparty response to the continued criticism of the government's Internet censorship legislation from a variety of different sources. I do not kid myself for a moment that Minister Alston is unfamiliar with the criticism and the sources of it—and not only from the Electronic Frontiers Association that he has been so heavy-handed with in his comments today. I must acknowledge too, I suspect, that the visiting professor, Nadine Strossen, the President of the American Civil Liberties Union, probably would not appreciate being told by the minister that she had been fed her lines on her visit to Australia. I suggest that the United States and that body in particular are perhaps a little more familiar with the far-reaching consequences of this legislation than the minister is aware of.
Certainly, there was originally an Australian Democrats motion that drew attention to the professor's comments in relation to the legislation. And, as I said earlier, I do not shy away from the concept of repealing legislation that is either bad or unworkable—but I recognise that as a minimum we can set out to call on the government to do the three things that are catered for in subparagraphs (c)(i), (ii) and (iii) in the notice of motion—insisting that the government address the concerns raised by those industry and community groups, that we urgently revisit aspects of this legislation and that there are reports tabled on the effectiveness and consequences of the act in the Senate at six-month intervals.
I would like to draw attention to the comments made by Professor Strossen during her visit to Australia in August of this year. As most senators would know, the ACLU has a long history in the United States of pursuing rights, including issues of discrimination, free speech and religious freedom. I take on board the comments of the previous speakers drawing the distinction between the culture—and the jurisdictional culture as well—in this country as opposed to America's. Professor Strossen's comments have reiterated a number of concerns which have been raised at all stages by the Australian Democrats and other groups in this debate. I acknowledge that her background is in a jurisdiction in which there are constitutional rights and freedoms and I am happy to postpone for now the debate as to whether Australians want or deserve a bill of rights. The Democrats' position on that is quite clear.
As I have previously indicated, the absence of constitutionally guaranteed rights means we need to be especially vigilant in this country when it comes to the protection of rights and freedoms. The main thread of Professor Strossen's comments relates to `the draconian and regressive' nature of the legislation. Professor Strossen reiterated our concerns that `the Internet censorship legislation is vague and might reflect the values of those enforcing the laws'. The government has responded by claiming that our concerns about the Internet censorship regime are unwarranted, since the latest draft—and certainly Senator Alston referred to this—of the Internet Industry Association's code is significantly more flexible than expected. The IIA code is particularly flexible in relation to content control, but that is not the central issue. I will return to that argument shortly, because it actually reflects directly on one of the arguments that we have been hearing, certainly from the minister today and from the government generally.
The reported comments of Professor Strossen indicate a range of additional concerns. She referred to the fact that it is not possible to draw a meaningful and coherent distinction between what should and should not be banned other than by allowing indi viduals to decide exactly what it is that they want to see. We already draw distinctions—and this has been referred to in the debate—of this kind in Australia in relation to the process of classifying or censoring offline material—that is, material that is not on the Internet. But there are certainly significant problems in carrying over that distinction to the Internet media.
I also remind the Senate that the line chosen by the government for Internet media is not the same for non-Internet media. Those anomalies were very clear during the debate on this bill in the chamber and through the committee stages; and now, of course, members of the community and those in the industry are very conscious of those distinctions.
With particular reference to the situation in the United States, Professor Strossen referred to the child protection argument which has been used both by the US government and by our government. She made it clear that this argument has already been rejected by the United States Supreme Court as an inappropriate counterbalance to the question of rights and freedoms. The primary reason for the rejection of this argument in the United States is a clear understanding that the Internet cannot be censored for children without censoring it for everybody. This is particularly fundamental because it goes directly to the type of legislation that is needed if a choice is made to restrict content. It was certainly clear at the Senate select committee hearings on the legislation that the government had chosen a superficially attractive model rather than a model that depended on the education and responsibility of supervising adults. So these comments that have come from Professor Strossen are just some of the many criticisms that abound about this legislation and that have appeared since the passage of this legislation three months ago.
Another range of criticisms was found in the results of a Bertelsmann survey—which has been referred to by both the minister and Senator Bishop in this debate—that was recently released by the ABA. The results of this survey show that Australians are more confident about end-user content control than they are about control administered by Internet service providers, government agencies or web site producers. I will not go into those figures, because they have already been referred to in this debate. While that report did indicate—and we do not shy away from this—some general support for Internet content control in Australia, it also indicated very significant concerns with the model adopted by this government.
The aspect of the legislation requiring the government mandated blocking of materials came in for particular criticisms. In a telling addition at the time of the release of the report, the ABA deputy chairman, Gareth Grainger, commented that a regime that required the blocking of content `was not a manifestation that we were prepared for'. The ABA came to the Senate select committee hearings with a strong reputation in this policy area, but it seems that even they were caught by surprise by the government's expedient shift to a fairly draconian content control policy.
Professor Strossen's comments and the Bertelsmann survey are only two examples—but I think they are reputable examples—of recent criticisms of that legislation. I will not use all my time today to go through some of those widespread criticisms. Instead, I would like to expand on some of the recurring issues and criticisms in the context of the remainder of the motion before us.
The most fundamental accusation which has been levelled at the legislation and the policy is that it will simply not achieve its intended objectives. Of course, that is covered very clearly in (b)(i) of the motion before us—that the act `will not achieve the government's stated objectives'. Evidence before the Senate select committee indicated that there were numerous problems with the construction of the legislation. Many of these problems relate to some of the incredible difficulties in regulating a medium which is not based within our jurisdictional boundaries. This is a major change from our experience in the regulation of traditional physical media.
There is another thread to the `unachievable outcomes' accusation, and that is the sheer technical difficulty—perhaps the sheer techni cal impossibility—of regulating a medium which was created for the broadcast of messages but also for the sharing of information among a multitude of content providers and consumers all over the world. Of course, that very democratic nature of the Internet makes it very difficult to regulate. Putting aside the clear threats of some in the Internet community that they would work to make the legislation irrelevant—I am conscious of some of those groups and individuals but I am not promoting those actions—I must point out that it is possible to avoid the impact of this legislation altogether. It is possible to work around this legislation. So in that respect, it makes elements of the government's intended objectives and the legislation itself unworkable.
Internet services are available which allow users to maintain complete anonymity and to request content via services located in more enlightened, if you like, jurisdictions. In addition to these pretty serious problems, there was clear evidence provided to the committee in the form of a CSIRO report which showed that content control was more likely to be successful when it was implemented closer to the end user. So we have evidence that backs up this claim.
The government's desire for some level of control over behaviour has led them into a system which has quite eerie parallels with the content control mechanisms that have been adopted in some of the world's less free and democratic nations. As we heard during the committee's deliberations, we are adopting a range of measures, unworkable measures at that, that are inevitably being discarded in other countries. I do not know whether we seek to emulate some of these countries' jurisdictional controls or undemocratic processes, but the countries that have discarded this kind of legislation include Malaysia and Singapore. Why are we seeking to emulate the kinds of laws they have discarded for various reasons, be it desirability or the lack of workability? Both of those countries still have some degree of content control but their controls have been dismantled or reduced due do `demonstrations of community attitudes'. I certainly suggest that the committee's reports and evidence on those matters make interesting reading.
Another major concern is the impact that this legislation will have on business in Australia. Those concerns are referred to in the motion at subparagraphs (b)(ii) and (iii)—that is, that the adverse impact of this legislation will affect our emerging e-commerce industries and Internet industries, which are strong employers of Australians and young Australians in particular, and that the act will discourage investment in information technology projects in Australia and will force Australian businesses offshore. They are concerns that the Democrats have explained from day one but still are very conscious of.
There are three main impacts wrapped up in this. Firstly, there is already evidence that the act is sending some Australian businesses offshore. Before anyone suggests that I might be talking about undesirable business, I am actually talking about clean clients of some of the small Internet businesses in Australia, particularly in my home state of South Australia. They are moving their web sites and general Internet presence overseas to avoid any of the uncertainties that are created by this act.
The second major impact on Australian businesses as a result of this legislation is the direct costs of preparing for the regime. Certainly those honourable senators, including the chair, who were involved in the Senate committee's deliberations know that this was an issue that cropped up. It was an issue that not only I asked about but also fellow senators asked about—that is, what are the costs involved for the players in this particular industry as a consequence of the passage of this legislation? Paul Budde, a telecommunications analyst, has done some work in this area which indicates that the compliance costs are likely to be in excess of $150 million and, even with these costs, he suggests that `complete compliance' would be only 10 per cent effective.
The third impact on Australia's business environment is perhaps the most telling, especially in light of the government's continued rhetoric about establishing Australia as an Asian business hub. Other reports and surveys that have emerged in the media recently indicate that this act is causing a level of uncertainty which may jeopardise Australia's potential as a regional financial centre. Given this, it would be nice to see the government resolve these problems before we hear any more rhetoric about attracting high-technology business in Australia.
I do not think anyone in this chamber would wish for us not to be a high-tech hub. I think everyone recognises, or at least I hope they do, that e-commerce and Internet industries are emerging visionary industries, sustainable industries; the kinds of industries on which we should be basing our future wealth, prosperity and employment opportunities. But you do not do that by—well, as a government, you are bereft of industry policy for a start—putting barriers and obstacles in the way. Even if the government are committed to some form of content control, certainly some kind of control over what minors can access through the Internet, then you must do it in a way that is less hasty, you must do it in a way that involves all the key players in the community and the industry, and you must do it in a way that ensures the act is not riddled with uncertainties that may provide obstacles to business opportunities not just for domestic investors or domestic Internet users but for people from other countries, from around the world, who are wishing to invest.
I mentioned earlier that the government is now relying extensively on the reworked Internet Industry Association's code perhaps as a way of avoiding responsibility for this legislation. Yes, the code is significantly better than many people expected, but it must be placed in the context that it is one of the possible codes that could be registered. It is surprisingly soft on some of the more ugly problems which may have been foreseen, but the powers contained within the act are still available to the government and the ABA. A soft code may be able to sell content control better, but repressive and draconian powers are still contained within the act.
I also note that one of the main reasons that a soft code is possible is the series of amendments introduced by the government on the day of the passage of the legislation in the Senate—again, another hasty introduction. These alternative access arrangement provisions were not before the Senate select committee when we investigated this bill and they were not part of the government's stated policy until they were seen that day of the debate in the Senate.
I encourage my Senate colleagues to read the select committee's report. With all due respect to the chair, Senator Ferris—a very fair and able chair—I highly recommend the Democrats minority report in particular. That sets out numerous problems. We should not be standing by while this government does extraordinary damage to our reputation within the international community and also to the Australian Internet industry. This motion calls on the government to immediately address these and other concerns, and I commend it to the chamber.