Senator STOTT DESPOJA (6:14 PM) —The Democrats have grave concerns with the Broadcasting Services Amendment (Online Services) Bill 1999 . We are still a little unsure as to what is driving the government in the implementation of this legislation, which we consider unworkable and as having undesirable aspects in relation to this regulatory regime. This morning, in discussing the exemption of this bill from the cut-off, I referred to the government's failure to establish a need for this legislation and its inability to substantiate some of the reasons it has put forward for this legislation, in particular in relation to community concerns. Since the government has no intention to change its strategy on this proposal at this late stage, I will take this opportunity to outline the Democrats' continuing concerns with this bill and the government's approach.

Before outlining the Democrat concerns, I remind the Senate—particularly in light of Senator Tierney's contribution to this debate—that the Democrats are not advocates of unsuitable Internet material being made available to minors. That view is probably reflected among all honourable senators in this place. However, we are unable to countenance the markedly different treatment of similar materials published in different media. This is an important point for us in debating this legislation. The Democrats do not advocate an entirely laissez-faire approach to the regulation of Internet content, but clearly we have major concerns with the mechanisms proposed by the government and the extent of their interference in legitimate expression.

As we have pointed out on numerous previous occasions, our concerns are divided primarily into two main groups. The first of these relates to the unworkability of the proposals. In particular, we are opposed to the creation of a system of regulation which has no hope of preventing access to inappropriate materials. The very intention of the legislation is to block or stop what is considered inappropriate material. Why create a regulatory regime that does not necessarily have the ability to do just that?

The bill addresses content published on Australian servers and overseas servers in markedly different ways. For Australian content, the bill provides a regime that can work, although at significant cost to the Australian Internet industry. There are major concerns about the interaction between the ABA as the peak regulatory authority and the use of industry codes to create enforcement mechanisms in tune with the legislation. But the big problems with the workability of this proposed legislation are linked to the problem of regulating Internet behaviour beyond our jurisdiction. By now it is recognised in most countries that regulation of the Internet is a jurisdictional problem probably without peer. The jurisdictional problem obviously arises in relation to the treatment of material that originates overseas.

However, instead of developing an approach which would have the possibility of preventing the access of minors to inappropriate material, the government seems to have taken a leaf out of the story of King Canute. Standing on Australia's metaphorical shore and demanding that the tide of content turn back seems a bit far-fetched as a legislative response to Internet regulation. But this is actually what the government is envisaging. For materials hosted overseas the legislation demands that Internet service providers take `reasonable steps to block access to content which would be classified as inappropriate'. I think we should draw the Senate's attention to remarks by the government on this aspect of the legislation. In press releases, media interviews and indeed during the Senate committee process, the government has referred to technical feasibility as the test, but contrary to repeated assurances this is not the test to be applied in the legislation. Overwhelming evidence has been provided showing that the blocking of materials is going to be costly to the Australian Internet industry—both directly and indirectly. More significantly, evidence was provided to the committee investigating this bill which indicated that the blocking mechanisms and approaches suggested were technically flawed. Senator Tierney alluded to some of that evidence as well.

The performance implications are very serious and the proposed blocking would be easily circumvented. Evidence on the performance of blocking technologies indicated overwhelmingly that they were more successful the closer to the user they were implemented. The overall conclusion in evidence presented to the committee in the CSIRO report is:

Content blocking implemented purely by technological means will be ineffective.

The other area of broad concern that the Australian Democrats have with the proposed legislation is the undesirable aspect of many aspects of the proposed content control regime. I have listed some of these concerns before, but I reiterate them for the purpose of this debate. They include: the failure to address civil liberties concerns relating to privacy and freedom of speech and expres sion, the creation of broad discretions and uncertain law enforcement provisions, the different treatment of materials in different media, the almost certain adverse impact on the Internet industry in Australia, the likely deleterious impact on the information economy in Australia and the failure to address concerns about the likelihood of inappropriate and inadvertent blocking of materials and related issues. I will expand on some of these issues of concern.

The Democrats feel compelled to remind the parliament of the place of free speech in our system of government. We must be aware that freedom of speech is what is left after the boundaries have been defined by the courts and the parliament. We do not believe that the government has met the onus required to justify the restrictions proposed under the legislation. During the committee process the comparison was drawn between the proposed regime and the content controls implemented in other countries not often classed as liberal democracies. It should be noted that recent news reports suggest that Canada has now abandoned previous attempts to control content.

We are very concerned about the legal construction of the legislation. In this context, our main concern relates to the broad problem of creating an unenforceable law. We have already indicated that the failure of this unworkable law might lead to further and perhaps more punitive demands for Internet content control. There is also the concern that a largely unenforceable law will lead to undermined confidence in government and further distrust from the Internet community. Believe me, in evidence before the committee and in the many faxes, phone calls and emails we have received from the industry, both in this country and overseas, there is already a level of distrust of this government and uncertainty in those important sectors.

The different treatment of like content also deserves attention. The government has made it quite clear that it views the Internet as analogous to existing media. I note that this bill draws on broadcasting and narrowcasting analogies to explain some of its provisions. The government continually denies the special nature of Internet publishing processes. Internet content is made available by huge numbers of publishers. It is made available on a pull or demand driven model: users must explicitly request material before it is provided. As one of only a few countries in the world with content controls, Australia would become a less desirable place to host or develop Internet content. This and other indirect economic costs would be likely to have significant impact on the development of the whole Internet industry in Australia. Surely that industry is something that we want to encourage and support, not clamp down on or quash. This is in addition to the direct costs of enforcement which I have already referred to.

Alternatives—relying on voluntary client-side blocking, education and adult responsibility—would be unlikely to have such a detrimental impact on the development of the information economy in Australia. It is hard to imagine any group that would benefit economically, except perhaps the multinational creators of family content. The likely shake-up in the Australian Internet industry would lead to a reduction in the diversity and coverage of Internet service providers in Australia. The Democrats view this as a very unfortunate outcome generally but particularly unfortunate for regional and country users of Internet facilities.

Evidence was also given at the Senate select committee about a number of inconsistencies in the funding of the content regulation mechanisms. In particular, the Democrats would like to draw attention to the vastly different classification regimes proposed by the government in the bill for Internet content and the simultaneous move to a user-pays system in film and video classification.

Another of the big concerns about the government's proposal is the need to regulate the use and operation of any filtering technologies. These concerns apply to both client-side and service provider based filtering. Numerous cases and studies confirm that content filters often block material which it would actually be desirable to make available—it is inadvertent blocking of those materials.

Concerns have been raised about the blocking of sites referring to, say, health issues such as breast cancer. Gay and lesbian sites, especially those for teenagers, are blocked by most filtering programs. Other examples of sites that are blocked include: the anti-racism site, HateWatch; safe sex sites; safe drug use sites; drug sites about feminism; and sites about alternative politics. A very recent analysis of one of the government's favoured technologies has revealed the blocking of the National Party home page and the Mick's Whips e-commerce site. I note in passing that this site has often been used by the leader of the National Party as an example of the success of Australia's information economy. Imagine blocking a National Party home page!

The Australian Democrats believe that any use of filters, whether client-side or ISP based, must be regulated to prevent the imposition of value systems which are not explicit. Users must know exactly what will be blocked and alternatives must be made available which do not promulgate narrow American family values. That is not meant to be an adverse reflection on American society, but just a reflection on where a lot of the content is coming from. Systems which are based on complex weighting schemes, such as that provided by Clairview as an example, should only be employed after a rigorous and open examination of the inherent assumptions that are being made about content. Blocking lists and weighting schemes must be fully disclosed to prevent abuse. In a democracy, censorship mechanisms cannot be as protected as trade secrets.

Given the time available, I would now like to make it very clear what the Democrat position is on this bill. We do not advocate unsuitable Internet material being made available to minors. As I said before, I do not believe any senator or member in this place would advocate such a position. That is not a point of disagreement in this debate. We oppose the restriction of adult access to material which would generally be acceptable to reasonable adults. We oppose the restriction of adult access to Internet content where that content is available in different media. There is no reason for the kind of material that is currently available to adults in a different medium to be blocked on the Internet specifically.

We have found very little evidence of the so-called overwhelming community concern claimed by government as the motivation for this legislation. In fact, evidence before the Senate committee indicated that the Australian public is far more concerned about inappropriate censorship. Evidence also indicates that extreme violence and racism are actually of greater concern than explicit sexual material. Internet users have a number of serious and legitimate concerns about Internet regulation, including hate speech, vilification, defamation, gambling, privacy, security, encryption and the legality of electronic transactions. These issues are not addressed in this bill.

These issues have also not been debated at any length in the Senate select committee, which has responsibility for investigating issues to do with information technology. These issues were indicated by many witnesses as being of more concern than, for example, monitoring or clamping down on sexually explicit material. Perhaps we should be focusing on these areas in the burgeoning information economy as opposed to legislation of this nature.

The government has not demonstrated any problems with the use of existing legislative provisions for dealing with inappropriate content, including section 85ZE of the Crimes Act 1914—which, of course, is a mechanism which is already in place for dealing with illegal or illicit content that may be online. The Democrats remain very concerned about the government's unwillingness to address some of the civil liberties issues raised by this bill. Restrictions on freedom of speech and imprecise enforcement provisions—in some cases privatising law enforcement functions—are serious and should not be dismissed lightly. This bill proposes a scheme of content regulation which treats the Internet very differently from analogous media. Content which is legal in one medium could actually be considered illegal in another.

Sitting suspended from 6.30 p.m. to 7.30 p.m.

Senator STOTT DESPOJA —Before the dinner break, I was explaining the Democrats' concerns about this bill, which fall into two categories: philosophical, that is, it may be a constraint on certain civil liberties in a democracy, such as freedom of speech and expression; and its workability, that is, the technical feasibility of the legislation. I was just concluding by articulating clearly to the chamber, for the record, the Democrats' concerns.

We do not believe that Internet content regulation should result in a medium which is brought down to a lowest common denominator. Regulation must take into account the diversity of the Internet and the legitimate and responsible use of that medium by adults. If the bill is to proceed, it should include some guarantees of the privacy of both transactions and the personal details of Internet users. The possibility of logging transactions via proxies would result in a major invasion of privacy, in our opinion.

The evidence overwhelmingly suggests that the proposal to block overseas Internet content is technically flawed. There are major performance implications, and blocking is able to be circumvented. In our opinion, that would have major economic consequences. The Democrats are concerned about inappropriate and inadvertent blocking. This concern applies generally to filters, but of course it is of particular concern where blocking is compulsory. Blocking lists used in filters should be fully disclosed. Secret lists of which materials are to be blocked could lead to abuse, so that whole process must be transparent. Any censorship in a liberal democracy, as I have stated for the record, must be open and it must be accountable.

The creation of an unenforceable law, such as the provisions blocking overseas content, is highly undesirable. The Democrats have numerous concerns about the drafting of the bill as it has been presented to the committee. These include broad discretions, harsh penalties, undefined terms and the possible abuse of provisions. We believe that self-regulation and co-regulation need to be more carefully investigated in the context of content regulation.

Client-side filtering technologies and differentiated Internet services offer a workable alternative to blocking materials at the source or in transit. Client-side technologies need to be regulated to ensure that appropriate content is not inappropriately or inadvertently blocked. Users need to be fully aware of the assumptions and of the models that are being used to block content.

The Democrats believe that adult responsibility should be a central component of any attempt to control the way in which young people use the Internet. The Australian Democrats would support a system of Internet content regulation that was based on empowerment of responsible adults rather than a command and control censorship mechanism. This would need to include education and the availability of client-side filtering technologies.

The Democrats regret the sensationalist way in which the government has labelled critics of this proposed legislation, including a number of those organisations and witnesses that appeared before the Senate select committee. We believe that this bill has been prepared with undue haste and that consideration should be given to alternative proposals that are based on the education and the empowerment of users, as well as on an understanding of the responsibility of those supervising Internet access for young people. Certainly the Democrats agree that there is a need to address the issue of Internet content, but we have serious problems with the proposals currently before us and we do not believe that the hurried process has been appropriate.

As I said, we have grave concerns about this legislation on two grounds: philosophical, that is, civil liberties questions; and the feasibility and workability of the legislation. I strongly urge senators to reject the legislation before us, to enter into an examination of what would be appropriate and to do it in a way that is not rushed and not part of a trading off process in terms of other legislation or of cross-trading on other issues. Then we could have a regulatory system that suited all users of the Internet but that did not quash, thwart, undermine or erode the burgeoning information economy in Australia.