1.1 This is the Committee's second report on the issue of the regulation
of computer on-line services. Its first report Report on Regulation
of Computer On-Line Services Part 1 was tabled in September 1995.
The report contained a description of the proceedings of a public seminar
which the Committee had convened in Canberra on 4 April 1995 in order
to examine the computer industry's concerns about the Government's proposals
for regulation at that time. The Committee also gave a preliminary assessment
of more recent developments at the Government level.
1.2 While the Committee noted in its report that Government announcements
in July 1995, following the conduct of the Committee's seminar, seemed
to represent significant progress, the Committee considered that there
were limitations in the Government's approach to examination of the topic
which a Committee inquiry might be able to resolve. For example, while
the Government had invited submissions from the public in relation to
its proposals, its deliberative processes on those submissions have been
criticised by the Committee in the past as closed and secretive. By comparison,
the Committee's approach is transparent and consultative and the protection
of parliamentary privilege provides submittors the opportunity to be more
frank and open about their views than they would to an impersonal public
1.3 Accordingly, on 31 August 1995 the Committee resolved to advertise
an inquiry in the national print media in these terms:
The Committee has resolved to undertake an inquiry into the regulation
of computer on-line services in recognition of a growing community concern
about unsuitable material being accessed by children using their home
or school computer.
The Committee will examine:
(i) The operations of current and planned computer on-line services
(ii) the extent and sources of obscene, offensive or otherwise undesirable
material through on-line services; and
(iii) the adequacy of existing and proposed regulatory systems to control
access by minors to such material both in Australia and overseas.
1.4 Because the Committee saw the need to present its advice to the Government
in a timely manner, it sought submissions by 29 September 1995 so that
it could report by the end of the 1995 sittings of Parliament. The Committee
received 37 submissions which came from residents in each State and the
Australian Capital Territory. A list of submittors is shown in Appendix
1. In this report, references to the evidence received by the Committee
in submissions is cited as "Evidence, p. sXXX". Two volumes
of submissions have been tabled with this report and can be obtained from
the secretariat on request.
1.5 Public hearings were held in Canberra on 22 September 1995 and in
Sydney on 12 October 1995. Details of witnesses at these hearings is shown
in Appendix 2. In this report, references to oral evidence are cited as
"Evidence, date of hearing, p.XXX". Copies of the Hansard
transcripts of evidence have been tabled with this report and can also
be obtained from the secretariat.
1.6 The Committee wishes to state its appreciation for the contributions
of all submittors and of those persons who were also able to contribute
to the Committee's deliberations at the public hearings.
1.7 The Committee was first alerted to the inappropriateness of some
of the material accessible through computer on-line services during hearings
in 1993 in relation to the introduction of a scheme for the classification
of video and computer games.
1.8 In discussing the practical implications of a scheme of classification
of computer games Mr Christopher Blackman, Marketing Director of Leisure
and Allied Industries, the operator of the chain of Timezone entertainment
centres, had described as the real 'villain of the piece' computer bulletin
board systems (BBS) accessible through modems and telephone links, which
he stated were impossible to regulate and to police. He and other witnesses,
including a group of Canberra-based high school students, raised with
the Committee the spectre of unclassified games (ie. the most violent
and sexually expicit) being available on computer bulletin board systems.
1.9 In its October 1993 Report on Video and Computer Games and Classification
Issues the Committee noted that 'the situation presents the most challenging
regulatory problem' and foreshadowed that it would pursue the matter or
regulation of BBS at future hearings. In the interim, it called for Australia's
Censorship Ministers to give consideration to immediate remedial measures.
1.10 While there was no public announcement at the time, it was subsequently
revealed that the Standing Committee of Censorship Ministers, the tri-annual
meeting of Commonwealth, State and Territory ministers with responsibility
for censorship, had given its consideration to the issue of bulletin boards
at its meeting on 4 November 1993. In deciding to regulate the sale, hire
and arcade use of computer games the Ministers noted with concern that
children could gain access by means of computer bulletin board systems
to material which would otherwise be unavailable to them because of their
age. Because of the greater complexity associated with the regulation
of material available on BBS, the Ministers decided to deal with the issue
1.11 On 3 February 1994 the Attorney-General, Mr Michael Lavarch, and
the Minister for Communications and the Arts, Mr Michael Lee, announced
the formation of a joint task force to investigate the way in which computer
bulletin boards could be regulated. At the time Mr Lavarch said:
We cannot allow advances in technology to overtake the legal and law
enforcement measures designed to protect [children] in particular from
1.12 The Task Force on the Regulation of Computer Bulletin Board Systems
('BBS Task Force') was asked to investigate whether:
- existing Commonwealth offences covering the misuse of computers and
telecommunications services are adequate to deal with bulletin board
- import/export restrictions are capable of controlling the international
trafficking and subsequent copying and distribution of otherwise banned
- State and Territory laws such as those dealing with the misuse of
computers and possession of child pornography are adequate to deal with
- current law enforcement tools are adequate to deal with the new technology;
and whether specific offences need to be created to cover paedophile
computer networks, for example.
1.13 The BBS Task Force report, released to the public on 5 October 1994,
identified five options but did not strongly push any specific recommendations.
Apart from a "do nothing" option, the options identified were:
- development and adoption of guidelines by the BBS community with a
complaints based system of enforcement;
- application of partial classification to BBS by prohibiting material
which would be 'refused classification' and developing formal guidelines
for dealing with 'restricted classification' material. No compulsory
classification would be required;
- application of partial classification together with a legal obligation
on BBS operators regarding 'restricted classification' material; and
- application of full classification to BBS including compulsory classification.
1.14 Because of an apparent lack of progress at the government level
and computer industry criticisms of the proposals contained in the BBS
Task Force Report, the Committee decided to bring the parties together
in a public seminar to discuss the Task Force's report.
1.15 The April 1995 seminar was designed to have the issues fully aired
and to enable the Censorship Ministers to be more comprehensively informed.
Two major issues arose from the seminar. Firstly, the computer industry
witnesses were critical of the lack of appreciation of the nature of the
technology by the report's authors, which it was argued had the potential
to severely damage the industry's development. Secondly, the rapid growth
of on-line services such as the Internet had raised more complex regulatory
issues than had been envisaged in the examination of BBS alone.
1.16 As a response to the latter issue, both the Committee and the Government
have expanded the scope of examination to computer on-line services in
general, which includes the Internet and related networks as well as BBS.
1.17 On 9 July 1995 Ministers Lavarch and Lee released a consultation
paper Content Regulation of On-line Information Services. The paper
proposed a strategy with three elements:
- A self-regulatory scheme incorporating a code of practice for the
industry. The code's standards would be based on the current classifications
used by the OFLC. A complaints mechanism would be set up to handle disputes
between service providers and complainants.
- An education component to help protect children.
- Sanctions for breaches of community standards. Access providers would
not be liable for material passing through their systems, but would
have to show that they had taken reasonable steps to avoid a contravention
of the offence provisions.
The deadline for submissions to the Department of Communications and
the Arts was 1 September 1995.
1.18 On 14 July 1995, Mr Lavarch announced that the Censorship Ministers
had unanimously endorsed this strategy and that the States and Territories
had indicated that they would act quickly to amend their laws to give
teeth to the strategy to deal with anyone who flouted the voluntary code.
At that time, Western Australia and Tasmania were said to be planning
to introduce amendments in the 1995 spring sittings as model legislation.
1.19 Western Australia was the first to act, introducing its Censorship
Bill 1995 on 31 October 1995. The bill will make it an offence for
a person to transmit, possess, demonstrate, advertise or request the transmission
of material knowing it to be objectionable. Objectionable material is
defined as material which would be refused classification, such as child
pornography. The bill also makes it an offence to make restricted material
available to a minor through a computer service.
1.20 On 8 August 1995, Mr Lee announced that he had directed the Australian
Broadcasting Authority (ABA) to investigate the content of on-line information
and entertainment services and to report by 30 June 1996. This wider inquiry
was seen by the Minister as complementing the work already done in relation
to the regulation of existing on-line information services and would particularly
focus on community standards and expectations in relation to safeguards
for access to emerging services.
1.21 The Committee's September 1995 Report on Regulation of Computer
On-line Services Part 1 presented an overview of the major issues
in the debate. As foreshadowed in its September 1995 report, the Committee
comments in this report on the adequacy of the Government's recent initiatives
having now had the opportunity to consider the submissions and oral evidence
taken from government representatives, industry groups and the community
on what has been proposed. The Committee has set out below details of
its discussions with government representatives which clarified what is
planned. The input from the industry and the community is summarised in
chapters 2 and 3.
1.22 The Committee heard evidence in Canberra on 22 September 1995 from
representatives of the Department of Communications and the Arts (DoCA)
and the Attorney-General's Department (A-G's) and in Sydney on 12 October
1995 from representatives of the Australian Broadcasting Authority (ABA).
1.23 Dr Rodney Badger, Acting Deputy Secretary of DoCA, emphasised that
its inquiry and that of the ABA were component parts of a national strategy
for information and communications services and technologies which had
been announced by the Prime Minister on 6 April 1995. The Prime Minister
had said in his statement that:
These new services and technologies will change the way we live, work
and play. Their effect on our businesses, or schools and universities,
our hospitals, our governments, and many other aspects of our daily
lives, will be profound.
We have the opportunity to plan for a fairer, healthier, better educated
and more productive 'information society', through a managed and consultative
approach to the use of information and communications services and technologies.
1.24 The Prime Minister had stressed that the best way to address the
range of issues raised in relation to the so-called 'information superhighway'
was through a coordinated and whole-of-government approach. He announced
the establishment of an Ad Hoc Committee of Cabinet and of the National
Information Services Council. The Council was described as a high level
discussion forum for broad policy issues providing industry and community
input into the Government's consideration of the issues.
1.25 As Dr Badger indicated to the Committee, the Prime Minister directed
the Communications and the Arts portfolio to coordinate national policy
issues from a whole of government perspective. A task force, the Information
and Communication Services Policy Group, had been established within the
portfolio to service the advisory and consultative bodies announced by
the Prime Minister and to serve as a focal point to coordinate information
and communication services and technology issues in government. He added:
We have a central role in the processes leading to the government's
national strategy. The Prime Minister announced that the government
will consider the various issues relating to industry, social services,
education, research, regulations, access, privacy, security and a range
of other factors affecting the uptake of the new services. The national
strategy, as the Prime Minister put it, will address these issues in
a systematic way and put in place processes and policies which will
provide leadership and framework for moving into the next century (Evidence,
22.9.95, p. 3).
1.26 The Committee sought comment from Dr Badger and colleagues from
the Attorney-General's Department about how the strategy of regulation
proposed in the July consultation paper was expected to work and what
comment had been received. Comment was also sought on what the ABA inquiry
was intended to achieve and how its inquiry related to the Government's
1.27 Dr Badger stated:
The strategy proposed by the consultation paper is intended to spell
out the elements of a workable approach to the issues as we understand
them. The strategy provides for an industry based scheme which underpins
state and territory legislation, and it is supported by an education
strategy to promote greater awareness of the issues (Evidence, 22.9.95,
1.28 Dr Badger indicated the Government's preference for codes of practice
as the basis of industry self-regulation following the model used in the
Broadcasting Services Act 1992 (which were the subject of critical
assessment in the Committee's October 1995 Report on the Operation
of Codes of Practice in the Television Industry Part 1).
1.29 While compliance with a code of practice is seen as providing a
defence to the offence provisions contained in the strategy, such that
a service provider who had their systems used for objectionable material
without their knowledge could rely on compliance with the code of practice
as a defence, Dr Badger noted that 'the difficulties associated with the
development and implementation of a practical code of practice should
not be underestimated' (Evidence, 22.9.95, p. 4).
1.30 Ms Lyn Johnson, an officer of the Attorney-General's Department
who chairs the interdepartmental task force which has been examining on-line
services for the purposes of regulation, stated:
If a complaint is made, the owner of the site would have an obligation
to remove it. This would be expected to be part of the self-regulation.
If they did not remove it, they would become culpable and able to be
dealt with under the criminal provisions... The mobilisation of the
community and the industry to develop a code of practice and a complaints
mechanism meshes in with the offence provisions by providing the available
defences, but they are not essential for the offence provisions to operate.
If there is not a code of practice or a complaints mechanism in place,
the offence provisions can still operate (Evidence, 22.9.95, pages 32
1.31 Ms Johnson indicated that the task force had received over 100 submissions,
about 75 per cent of which were critical of the concept of regulation,
principally because of concerns that service providers would be held responsible
for material stored on their systems. Given that the Censorship Ministers
had supported the strategy of a self regulatory scheme backed by offence
provisions at its meeting on 14 July, the Committee notes that efforts
by submittors to oppose the concept of regulation were always going to
1.32 Dr Badger summarised the government's approach as:
The objective at the end of the day is to have an environment in which
the concerns of the community are met, rather than having one which
necessarily has a particular set of controls in place. The objective
is to try and solve the problem in a workable fashion which balances
a series of various objectives that people within society have. There
are community concerns, there are industry development activities, there
are privacy concerns and, in general, there has been a move away from
a lot of hands-on regulation by government towards industry codes, backed
up by sanctions, in a range of policy areas (Evidence, 22.9.95, pp.
1.33 In relation to the inquiry by the ABA, Dr Badger indicated that
it should be seen as a 'natural progression in an environment where things
are happening very quickly' and that it would examine 'the next generation
of on-line services, those made possible by broadband capability and which,
to consumers, will have the characteristics closer to those of the current
broadcasting services than of the current narrowband on-line services'
(Evidence, 22.9.95, p.3).
1.34 Mr Peter Webb, ABA Chairman, provided the Committee with copies
of an exchange of correspondence between the Minister and the ABA and
the Minister's formal direction for its investigation into the content
of on-line information and entertainment broadcasting services, including
any such services provided on the Internet. In his direction Mr Lee stated
I am aware that there is significant community concern about offensive
and possibly harmful material on on-line information and entertainment
services and I believe that the ABA has the necessary experience and
expertise in program content issues to investigate the issue and report
to me (Evidence, 12.10.95, p. 46).
1.35 The ABA was also asked to consider the appropriateness of any measures
which might be introduced to encourage or require on-line service providers
and users to meet community needs through various means such as the development
of and adherence to self-regulatory codes of practice, educational programs,
complaints handling procedures, devices for blocking or filtering certain
material and offence provisions.
1.36 Mr Webb made the point that the Censorship Ministers were pressing
ahead with the modification of criminal law to take account of on-line
services but that, below that criminal law, there is scope for a complementary
level of civil law based on codes of practice and their enforcement, which
will be the area of examination by the ABA. The question will also be
examined as to the extent to which on-line information and entertainment
services are accommodated by the Broadcasting Services Act 1992,
which is administered by the ABA, and whether amendments are appropriate.
The ABA is required to report to the Minister by 30 June 1996 and to publish
1.37 The final area of government action relates to the international
dimension, given the sourcing of much of the undesirable and objectionable
material from overseas. While material sourced from overseas falls outside
domestic regulatory jurisdictions, the Committee has previously suggested
that the Australian Government should seek to take a leading role in brokering
international agreements to control undesirable material from transmission
over telecommunications networks.
1.38 This issue was raised at the Committee's seminar in April 1995 with,
at that stage, the disappointing advice that there was little interest
in the matter in any international treaty organisation. Dr Badger informed
the Committee that Australia had subsequently submitted a paper entitled
Information Services Across National Boundaries to Study Group
1 of the International Telecommunication Union for consideration at its
May 1995 meeting. The Study Group had decided that the matter was of sufficient
significance that it should go forward to the plenary session of the World
Telecommunications Standardisation Conference to be held in 1996.
1.39 Advice from the Department of Foreign Affairs and Trade indicated
that no other international work was being done in this area, although
the Committee was informed that there is scope under the auspices of the
World Intellectual Property Organisation for the regulation of on-line
information services to be given multilateral consideration in the future.
1.40 The ABA also expects to give consideration to the possibility of
Australia taking an active role in achieving greater international collaboration
in controlling the flow of undesirable material across borders. It has
foreshadowed the examination of various options, including development
of an international set of principles for the use of on-line services,
encouraging nation states to develop domestic codes of conduct and long-term
strategies for the development of appropriate international structures
to deal with the problems posed by the emergence of global telecommunications
Back to top