Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No. 03/1999 by Gareth Griffith
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- This paper presents an analysis of recent developments in the
field of censorship law, notably in relation to two cases, one Australian, the
other American.
- The Rabelais case: The Australian case concerns
the decision to refuse classification to an article on shoplifting in a La
Trobe student newspaper called Rabelais. Among other things, this
case serves as a good framework upon which to build an explanation of the
administration of censorship in Australia, in particular the way the review
process works in this field, an issue which has come to the fore again of late
with the controversy surrounding the recent decision of the Classification
Board to grant an R' classification to the film, Lolita. In that process the
courts play only a limited role. Indeed, the arrangements in this area are
perhaps unique in terms of Australian administrative law. The situation in
regard to censorship is that one independent tribunal, the Classification
Review Board, reviews the decisions of another independent specialist tribunal,
the Classification Board, on their merits and without reference to the AAT
(page 2).
- The outcome in the Rabelais case was that the article in
question was found by the full Federal Court to instruct in matters of
crime' and was therefore prohibited under the National Classification Code.
On the other hand, it was not a communication concerning a political or
government matter and was not, therefore, protected by the constitutional
implied freedom of political communication. But even if the article had
been found to deal in a political or government matter, it was held that the
Classification (Publications, Film and Computer Games) Act 1995 (Cth)
satisfies the legitimate end of protecting the community from conduct likely to
be harmful' (pages 7-15).
- However, the Court's analysis of this issue points to the
continuing uncertainties concerning the scope of the constitutional freedom of
political communication. The question is, does the more recent emphasis on
the text and structure of the Constitution suggest a far narrower conception of
political speech' than was envisaged in the earlier cases, notably
Theophanous. The judgments of Justice Sundberg and Heerey would suggest
that that is the case, an outcome which may have important implications for
political dissent in this country. What is not in doubt is that the
implied freedom of political communication is altogether different to the kind
of constitutional right found under the US Constitution's guarantee of freedom
of expression. Justice French summed this up in these terms: The freedom of
communication in relation to public affairs and political discussion protected
by constitutional implication does not confer private rights. It confines
legislative power' (pages 15-17).
- On 11 December 1998 special leave to appeal to the High Court
was refused. The constitutional question was considered, with members of the
Court suggesting that the time to raise the constitutional guarantee might be
when the charges in the Victorian courts are heard (page 15).
- ACLU V Reno (No 2): The main United States case
discussed in the paper is ACLU v Reno (No 2), the issue in which is
the regulation of the Internet for the particular purpose of shielding children
from harmful on-line material. This was in the form of the Child On-Line
Protection Act (COPA), passed by the US Congress on 7 October 1998 and
signed into law by President Clinton on 21 October 1998. According to one
commentator, COPA has tried to get around the difficulties of the
Communications Decency Act 1996 case by creating a definition of harmful
material which is remarkable for its specificity'. Judgment in the ACLU v
Reno (No 2) case was handed down on 1 February 1999, in which Justice Reed
found for the plaintiffs, the American Civil Liberties Union, and entered a
preliminary injunction against enforcement of COPA.
- In a preface to his decision, Justice Reed noted that the
case raised: Two diametric interests - the constitutional right of freedom of
speech and the interest of Congress, and indeed society, in protecting children
from harmful materials - are in tension in this lawsuit'. It was observed
that, by typing the word dollhouse' or toys' into a typical World Wide Web
search engine, a child may be able to access sexual images and content. Noted,
too, was expert evidence to the effect that 60% of all Internet content
originates in the United States, a point which underlines the significance of
US decisions in this field for Internet regulation in other jurisdictions,
Australia included. His conclusion was that, for the purposes of entering a
preliminary injunction, there was sufficient evidence to suggest that COPA may
violate the First Amendment rights of adults (pages 18-20).
- The interest of this case, as well as the Loudon County
Library case, is that they highlight the contrasting approaches to the
protection of freedom of speech in Australia and the US, in particular the
different considerations that arise where the protection of minors is
concerned. That such protection is a valid interest of the state is
recognised in both countries, as well it might be, but the scope and rationale
for legitimate state intervention appears to be drawn very differently, with
any suggestion of state paternalism being treated with the utmost suspicion in
the US. In Australia, on the other hand, the state's role in protecting
minors from material likely to harm or disturb them' (to use the terminology of
the 1995 Classification Act) seems to be accepted more or less as a matter of
course. A further contrast to note is the US concern with laws which
abridge the First Amendment because they are vague, over inclusive, rely too
much on the discretion of administrators and are generally not sufficiently
narrowly tailored to achieve their purpose. In Australia, on the other hand,
the substantive parts of the censorship laws, as set out earlier in this paper,
would appear to exemplify by US standards most, if not all, these
characteristics (pages 20-22).
- Regulating Internet content in Australia:
Legislation for the purpose of banning objectionable material on the Internet
and restricting access to material unsuitable for minors has been introduced in
three Australian jurisdictions, Victoria, Western Australia and the Northern
Territory. In New South Wales, on the other hand, something of a wait and
see policy appears to have been adopted. Following the recommendations of
the Wood Royal Commission into the NSW Police Force, the one area where
legislative developments have occurred is that relating to child pornography.
Among other things, a new offence of publishing child pornography which can
be dealt with on indictment has been created (pages 22-25).
- At this stage, the proposal to develop a national regulatory
framework for Internet content, based largely on a self-regulatory framework
for on-line service providers (ISPs), has not been acted upon. It seems
that under this plan the ABA would only regulate content generated within
Australia. The one definite development which has taken place has originated
from the Internet industry itself, with the formulation of an Industry Code of
Practice (pages 27-31).
