Mr STEPHEN SMITH (5:34 PM) —The government's legislative framework is the equivalent of the lone postie in the Sydney mail exchange in the middle of the night individually steaming open the letters. As he comes across something that he thinks might be a bit sus, he gets on the phone, rings the local police officer and says, `I've got something here I'm a bit worried about. It's come from offshore. Would you mind faxing the Bermuda police and telling them we've got a problem.' Meanwhile, outside the post office, you have Minister Alston, the minister for communications, and his toady, the member for Dunkley, holding up the placard saying, `It's all solved. The problem's all solved. You don't need to worry. And if anyone takes a contrary view, please understand, they support paedophilia.' That is the government's framework and that is the government's presentation.

The legislation will not work. The biggest crime the government has committed in public policy terms with the presentation of this legislation is to pretend to the Australian people, to pretend to the mums and dads, that it is going to solve the problem. It will not. There is deceit here, and a golden opportunity has been lost. The golden opportunity that has been lost is that this was the perfect chance, the perfect opportunity, for the government to say, `This is an opportunity for us to start to educate end users, to start to educate those users of the Internet and their families, to start to educate parents, grandparents, guardians, teachers and school principals as to how you can use the Internet and how to ensure that it is safe and appropriate for children and people in your care by end-use filtering, by empowering the end user to determine that which you want to regulate.'

The government's effort to regulate the Internet content will not work. It will not work because over 90 per cent of content comes from offshore. The fact that the government's legislation is unworkable is reflected by the legislation's framework itself. When you look at the legislation's framework, you find that the government has established a framework which, for onshore content or onshore material, uses the current classification regime of refused classification and X classification and effects a take-down notice system through the ABA and seeks to impose a restricted access regime for R-classified material.

For offshore content, for overseas content, you have a take-down procedure for refused classification and X classification, but R is not mentioned. R is not mentioned because the government knows that it simply cannot control that volume of content. The government's legislative regime is unworkable because the vast bulk of Internet content is offshore, and the government's own framework acknowledges that it is simply unable to deal or grapple with that by the processes and mechanisms that it puts in place.

So what public policy crimes do we have here? We have the government presenting legislation which is unworkable. At the same time, we have the government through Minister Alston, the Minister for Communications, the Information Economy and the Arts, essentially pretending to mums and dads in the suburbs that without more this solves the problem, that once this legislation is passed by the Senate and the House you don't need to worry. The truth could not be further from that particular position. Rather than trying to have the lone postie sitting in the mail exchange individually steaming open the letters, if you want to seek to regulate content on the Internet, you have to do it in a thoughtful and sensitive way, in a way which is appropriate to that medium.

On this side of the House we say, yes, we do believe there should be a system of regulation for the Internet and the Internet industry and we say that should be a combination of legislation and industry code of practice. But if you are going to legislate for Internet content, then try to be smart about it. It is not just us who say this; it is the government's own premier scientific research agency, the CSIRO. In the context of the introduction of this legislation by the government, the CSIRO in April of this year in a press release entitled `Content blocking on the Internet' stated:

Blocking access to certain Internet material by Internet service providers or `backbone' providers will be largely ineffective, a recent CSIRO report has concluded.

Instead, CSIRO recommends the use of filtering software by Internet users, enabling them to choose whether to filter Internet content, and to what extent.

. . . . . . . . .

The report found that blocking schemes implemented by ISPs (Internet service providers) can easily be bypassed.

The release goes on to say:

CSIRO recommended the Government work with the Internet industry to promote the use of volun tary user-initiated content filtering, and that filtering software be made available to users free of charge.

That particular report predates April of this year. The CSIRO put out a press release releasing that report in April this year because that was after the government had announced its proposals and CSIRO was sending the government a message: what you are doing is wrong, what you are doing won't work, there is a more effective way in which you can address this problem.

The United States Senate has in recent weeks addressed this problem and addressed this problem in a very sensible way. I noticed when I was surfing CNET news.com on 13 May that the US Senate passed a resolution or an amendment to one of its bills. It was passed 100 to nil—it was unanimous. The report on CNET news.com says:

U.S. Internet service providers such as America Online would be forced to help parents protect children from objectionable material online by giving subscribers content-filtering software under a measure unanimously approved by the Senate.

The legislation would require all Internet providers with more than 50,000 subscribers to offer such software free or at cost within three years. AOL already provides filters to its more than 17 million subscribers, as do other Internet access providers such as MindSpring.

So the approach that the US Senate has taken is to say: if you are interested in regulating content, you are best seeking to regulate that content by end-use filtering, by empowering the end user, by educating the end user and providing that end user with assistance so far as filtering devices are concerned. So if you want to regulate Internet content, then you need to do it in a thoughtful and appropriate manner. You have to understand the unique characteristics of the Internet as an information and communications medium and you have to understand the adverse implications that heavy-handed, inappropriate mechanisms can have for the Internet industry and for Australia's attractiveness as an e-commerce jurisdiction.

It is important to remember some of the history of this legislation. The government was in long-standing conversation with the Internet industry over a long period of time in respect of an industry code of practice to regulate this particular area, and the industry was into draft No. 4—or it might each have been draft No. 4A—of their code. What happened? One day the minister announced they were going to legislate and tipped out the legislation. The legislation contained things which the industry had never been consulted about in respect of regulation of offshore content and a whole range of other matters. The government did it for one reason and one reason only.

It is very appropriate that today is 30 June. It is very appropriate that today is the expiration of the terms of current senators because tomorrow, as you well know, Madam Deputy Speaker Crosio, Senators Harradine and Colston no longer control the Senate. So this was—and I do not reflect on Senator Harradine in any way in this respect—the government's effort to drag Senator Harradine across the line on legislation not related to this industry. This was part of the government's device, the government's edifice, the government's attempts to drag Senator Harradine across the line on the privatisation of Telstra.

So the government may think they have had a victory out there by blackguarding the industry and blackguarding opponents to their legislation by saying, `You should ignore them. They are the supporters of paedophilia. They are the supporters of criminal pornography.' I suspect that, if you asked the community what have the government done in respect of the Internet and its content, out there in the suburbs they would say, `We think they have done something, but we know in our heart of hearts it is related to dragging the Tasmanian senator across the line.' That is why the government's attempts to blackguard the industry and blackguard the opposition and blackguard other people in the community who have said that this is unworkable legislation have effectively failed.

So this legislation was introduced in some immodest haste for the purposes of dragging Senator Harradine across the line. What was the industry's response to the legislation and its introduction? The industry's response was effectively to go into a pink fit. It made the point that it regarded the legislation as un workable, that it would give Australia a reputation of being an unattractive destination or jurisdiction for e-commerce, that the burdens you would place on Internet service providers would essentially grind the system to a halt, that it would bring the country in terms of attractiveness as an Internet destination into ill repute and put off investors, and that, in any event, the legislation would not work because the mechanisms were easily bypassable and, on the government's own framework, ignoring an R classification for offshore material would not deal with over 90 per cent of the content on the Internet.

So what is the structure of this unworkable piece of legislation? As I indicated very briefly earlier, with respect to onshore content—content put on the Internet within Australia—the government adopts the current classification regime of refuse classification, X classification and R classification. It says in respect of refuse classification and X classification that there is a take-down mechanism courtesy of complaint to the ABA, and that in respect of R material, you need to put in place a restricted access regime by way of age, identity, PIN and the like. With respect to offshore material, refuse classification and X material is subject to a take-down notice and an ISP must undertake or go through reasonable steps to ensure that that is effected.

So those opposite who seek to blackguard our position as being supporters of pornography or paedophilia should all understand that on not one occasion has the opposition queried or questioned the classification regime which the government has put in place, other than to say, `You are adopting the classification regime for films and for computer and video games; you are using the same regime for the Internet. This is a very fast moving area. You actually want to think at some point in the cycle as to whether that is the most appropriate vehicle, but we are happy to have that conversation or discussion at a different time.' So no-one on our side has queried the adoption or the take-up of those particular classifications.

I have noticed that those on the other side are always up there saying things such as, `I have got an 18½-month-old son and at some stage he will want to see a giraffe.' We are all in our own way sons and daughters and mothers and fathers. I have a young son and a young daughter. When I go to open days at high schools and I see the computer room, one of the first questions I ask is, `What are your end-user filter arrangements?' So those opposite do themselves and the community a disservice by seeking to pretend that they are the only ones concerned about ensuring that young people in our charge and care are not the subject of access to inappropriate material. That is under the classification regime that, for the purpose of this exercise, we do not quibble with. It was we on this side, when in government, who introduced the comparable classification regime to video and computer games. Why did we do that? One reason was that very much of the material that you find in video and computer games and on the Internet relates to violence.

I frankly think that the question of young people having access to violent material—whether it is on free-to-air broadcast TV, subscription TV, computer games, video games or the Internet—is a matter of serious concern. Those opposite do themselves and the community a disservice by seeking to pretend that they are the only ones who have that concern or that interest at heart. The great crime is that the government seeks to pull the wool over the community's eyes by pretending that its regime will in any way have any effect whatsoever with respect to those matters.

The further general framework of the legislation is that, in respect of the take-down mechanisms for that content that I have described, an ISP has to take reasonable steps to ensure that, once being the subject of a take-down measure, a reasonable step is gone through. And the reasonable steps can either be agreed through an industry code approved by the ABA or, in default of the industry code, be agreed by the ABA itself. So the heart of this legislation very much goes to: what can you regard as reasonable steps on the part of an Internet service provider, an ISP, to respond to a take-down notice by the ABA?

The bill was released by Minister Alston. It was the subject of consideration by the Senate Select Committee on Information Technologies. That was the subject of a majority report by government senators and a minority report by opposition senators and Democrat senators. The opposition senators' minority report formed the basis of amendments which the opposition moved in the Senate, all but one of which were defeated and which it is proposed, by way of amendments circulated in my name, to move again in this House. The government itself moved a range of amendments, some of which I will detail but, as you would suspect, if you thought the bill was bad, their amendments were worse—but I will come to that shortly.

The Senate report and the public hearings saw a whole range of submissions from the industry. They repeated very many of the things that I have referred to previously. In the industry's view, the legislation was unworkable, the mechanisms would be easily bypassed, the offshore content would ensure that the regime proposed by the government was unworkable, the penalty regime suggested by the government for continuing offences in response to take-down notices were very harsh when compared with other penalties, and the government had failed to take into account a whole range of important matters so far as what reasonable steps might be.

Aided by those submissions, the Labor senators effected a minority report, as I have indicated, and that formed the basis of the amendments moved in this place. When debate on this legislation started, I was unable to attend the House and the amendments circulated in my name were formally moved by the member for Bonython. I take the opportunity to quickly go through the second reading amendment and the points made there and some of the amendments which we will go to in more detail in the consideration in detail stage which reflect the substance of the Labor minority report in the Senate and which, in very many respects, reflect the submissions made by industry when the matter went before the select committee. The second reading amendment circulated in my name but formally moved by the member for Bonython reads:

. . . the House:

(1) express its concern that:

(a) the legislation is being dealt with in indecent haste and with inadequate consideration;

That largely reflects the fact that the minister dropped this on the table with the view to getting legislation through the Senate before 30 June, with nothing other than Senator Harradine and Telstra in mind. He did not have the concern of Australian young people or Australian families in mind when he dropped this on the table, he had 16.6 per cent of Telstra in mind when he did it.

Secondly, the government's claim that the legislation will solve the problem of unacceptable content is not supported by the reality that the vast bulk of Internet content is generated outside Australia. The government's own framework just ignores R-rated material that comes from offshore. Why? Because 90 per cent of Internet content comes from offshore and the volume is simply too much for the proposed regime to cope with.

Thirdly, the proposals, including the idea of mandatory Internet service provider filters, are unworkable and easily bypassed. It is not just the opposition who says that, it is not just the industry who says that, it is not just the Internet service providers who say that; it is also the government's own premier scientific adviser, the CSIRO, who says that. The application of the narrowcasting classification regime's regulation of Internet content has not been thoroughly analysed and may well require revisiting in the future in view of rapidly changing and converging technology, which is the point I made earlier. There is no quibble with the classification regime. We are quite happy for the purpose of this exercise to adopt it, but the government might have borne in mind that this is one of the fastest developing areas of industry, and it might just have had a thought for the future.

Fourthly, the legislation does not include a sunset clause or provision for review, given the speed of change in this area. It recommends that efforts should be made by the government to pursue international agree ments on the regulation of Internet content, and substantially more emphasis should be placed on end user empowerment through information and education campaigns for parents, schools and guardians about the use of the Internet and the end-use filter devices. That goes very much to the heart of our approach to this matter. If you are genuinely concerned about seeking to solve this problem, take a leaf out of the book of the US Senate—unanimous resolution of 100 to nil—and empower end users of the Internet and provide assistance by way of end-use filtering devices.

The amendments that are circulated in my name will be formally dealt with in the consideration in detail stage, and some are worthy of comment at this point in the cycle. I indicated that at the heart of the bill are the reasonable steps that an ISP must take to comply with a take-down notice of the ABA. It is suggested by way of amendments moved in the Senate and defeated by the government that the ABA ought to take into account:

. . . public interest considerations to be addressed in a way that does not:

(i) impose unnecessary financial and administrative burdens on Internet content hosts and Internet service providers; and

(ii) degrade the technical performance of the Internet in Australia to a material degree; and

(iii) inhibit the development of Australia as an attractive jurisdiction for the conduct of electronic commerce and for investment in that industry;

The point here is that you are dealing with an industry which has very vast economic and social potential for Australia and the world. If we are to have our role in that, we do not want to do things which in the event will not work but which have the effect of making our nation, or our jurisdiction, a less attractive place for investment in that industry. Secondly, in terms of reasonable steps, it is suggested by our amendments that those steps include:

. . . whether the particular steps are technically feasible, commercially viable and cost effective; and . . . whether the particular steps enable end users to be better informed about the use of, or assisted in the actual use of, filter devices for self-regulation of Internet content.

This goes right to the heart of what might be regarded as reasonable steps. The phrases `technically feasible', `commercially viable' and `cost effective' are taken from the press release, second reading speech or explanatory memorandum of the Minister for Communications, Information Technology and the Arts, yet he finds himself incapable of adopting these by way of amendment to the legislation. I would have thought they were incorporated by the interpretations act anyway, but the fact that the minister has been effectively negligent in this area is reflected by the fact that he cannot even find his way clear to adopt his own words by way of amendment.

Finally, a substantive amendment moved by us provides for a review of the operation of the act. We suggested that a review be undertaken of the operation of the act and that the act itself be subject to a sunset clause, to take effect at the end of three years, on the basis that we are in such a fast-moving area, and the parliament ought to be required to revisit this particular area of activity.

There are a couple of amendments that the government moved in the Senate which I think are worthy of some brief commentary. By way of amendment in the Senate, in what is now clause 95 of the legislation, the government suggested its own review clause. Clause 95 says, in part:

. . . Before 1 January 2003, the Minister must cause to be conducted a review of the operation of this Schedule.

(2) The following matters are to be taken into account in conducting a review under subsection (1):

(a) the general development of Internet content filtering technologies;

(b) whether Internet content filtering technologies have developed to a point where it is practicable to use those technologies to prevent end-users from accessing R-rated information hosted outside Australia that is not subject to a restricted access system;

Subclause (5) of clause 95 goes on to say:

The Parliament acknowledges the Government's policy intention that, in the event that Internet content filtering technologies develop to a point where it is practicable to use those technologies to prevent end-users from accessing R-rated information hosted outside Australia that is not subject to a restricted access system, legislation will be introduced into the Parliament to:

(a) extend subclause 10(1) to Internet content hosted outside Australia; and

(b) repeal subclause 10(2).

What the government is saying is, `We're going to have a review before 2003. Before we have that review, we will let you know that, firstly, we have pre-empted it and, secondly, it is our policy intention to pass legislation to extend the regulatory regime to Internet content hosted outside Australia.' All the advice currently is that that is unworkable.

So you have the ludicrous situation where the government puts a review clause in the legislation which predetermines its result and which effectively states what government policy of the day will be when we know, all things being equal and all things being happy, the current government will not be the government on 1 January 2003. The minister got himself into a most embarrassing pickle in the Senate. The legislation defines Internet content as:

. . . information that:

(a) is kept on a data storage device; and

(b) is accessed, or available for access, using an Internet carriage service;

but does not include:

(c) ordinary electronic mail; or

(d) information that is transmitted in the form of a broadcasting service.

So this legislation does not seek to deal with ordinary electronic mail. In other words, it does not seek to deal with live communication; it seeks only to deal with data which is stored to which the public have access.

The minister then went on in an amendment to the bill to define ordinary email as email that does not include a posting to a newsgroup. So an email is an email unless it is an email to a newsgroup. The minister seems to have some unusual fetish in respect of newsgroups and sets in the framework of the legislation a quite illusory distinction between an email to a source and an email to a source other than a newsgroup. The key point here is that, on the government's own admission, you cannot deal with the offshore content. On the government's own definition, it does not deal with live Internet content; it only deals with stored content to which the public have access. So if anyone stores some content on a newsgroup to which the public have access, it is caught by the government's regime, however ineffective that might be.

On the passing of the legislation through the Senate, there were a range of reactions. Firstly, the industry reacted adversely and suggested—I think anecdotal evidence will no doubt, in the fullness of time, seek to be scientific evidence—that this would cause a range of industry to move offshore. Secondly, there was grave concern that this would bring about adverse international publicity so far as Australia was concerned. Unfortunately, the passage of the legislation through the Senate coincided with the communications minister's trip to Silicon Valley, where he was attempting to curry favour by way of investor attraction to Australia. The Sydney Morning Herald story on 7 June under the headline `Net bill an investor turn-off' was an appropriate rendition of the response that was received there. On 4 June in wired.com, I noticed that Yahoo denied Minister Alston's assertions that Yahoo had supported the online services legislation when he had a conversation with them in the States. So there was adverse international commentary there.

I also noted the editorial in the Australian on 3 June under the heading `Internet laws only window-dressing'. The editorial in part says that the legislation:

. . . simply will not achieve its aim of barring access to classified and otherwise "offensive" material on the Internet. The Communications Minister knows this and indeed has conceded as much. But the legislation will not realise Senator Alston's goal of protecting children (and worryingly, adults) from material deemed dangerous; paradoxically it threatens both the information technology industry and Australian mores of privacy and freedom.

The editorial goes on to say:

. . . the Government's de facto censorship of the Internet which has conveniently helped to appease Senator Harradine might have been both more successful and less discernible.

And then:

. . . it should be employed by parents, not governments. If used in the home, such software will invest power where it belongs—in the hands of parents shielding children rather than governments protecting themselves from puritan powerbrokers.

So the same point is made by the CSIRO, the same point is made by the opposition, and the same point is made by the editorial in the Australian .

The government's legislation is unworkable. It is bad law. It will not meet the mischief or the evil which the government seeks to identify. The parliament will certainly need to revisit this area in the future. It is a deceit, which the government seeks to perpetrate on the Australian community, that this legislation will be effective. It is a great lost opportunity to educate mums and dads, school principals and teachers, parents and guardians of the great power and capacity of the Internet as a useful social, educational and economic tool. It is bad law. If the government rejects our amendments in this place as it did in the Senate, we will oppose the bill's third reading.

Debate (on motion by Miss Jackie Kelly) adjourned.