Constitution opened filter door: Expert

Australia's lack of constitutionally guaranteed rights made a much higher level of censorship possible in Australia than in other democracies, constitutional law expert Professor George Williams said today.
Written by Josh Mehlman, Contributor on

Australia's lack of constitutionally guaranteed rights made a much higher level of censorship possible in Australia than in other democracies, constitutional law expert Professor George Williams said today.

"Australia does not have a Bill of Rights which protects free speech at a federal level," said Williams, the Anthony Mason Professor of law at the University of New South Wales. "We don't have the protections that they have in every other democratic country.

"That means Australia might be subject to far more stringent regulations on the internet than would be possible in other democratic countries," he told ZDNet.com.au this morning in the wake of the revelation of the government's plans to filter Australia's internet for objectionable content.

For example, the degree of censorship proposed by the Australian government would be almost impossible in the United States because that country's constitution guarantees freedom of speech.

"They might be able to have internet filters that just restricted child pornography but not the breadth being considered here," Williams said. By contrast, the Australian constitution only guarantees freedom of speech in selected circumstances such as allowing political communication and criticism of politicians, he explained.

This could open the door to a regime that censored "a significant number of sites that are not illegal" and that would "separate Australia from the great bulk of Western liberal democracies", according to a report by three senior media studies academics released today.

The report, Untangling the Net: The Scope of Content Caught By Mandatory Internet Filtering by Professor Catharine Lumby from the University of New South Wales, Professor Lelia Green from Edith Cowan University and Professor John Hartley from the Queensland University of Technology, was highly critical of the model proposed yesterday by Communications Minister Senator Stephen Conroy, a blacklist of overseas sites similar to the one currently maintained by the Australian Communications and Media Authority (ACMA).

"One of the clear risks of focusing disproportionate public policy attention and public resources on content regulation is that many parents and teachers may gain a false sense of security when it comes to the material their children encounter online," the report warned. "This risk is particularly high in a regulatory system that relies on a blacklist which, by its very nature, will only capture and represent a small sample of the online material of concern."

The report found that only 32 per cent of the sites on ACMA's blacklist related to child pornography, with the remainder comprising content that had been classified R18+, X18+, RC and unspecified.

"If a mandatory internet filtering regime were to be implemented along similar regulatory lines to the current classification system used by the ACMA in the formation of their blacklist then it is likely that the scope of filtered content will not include just illegal content (such as child pornography) but also prohibited content (such as material rated X18+ or material rated MA15+, R18+ and not subject to appropriate restricted access systems)."

"The ACMA is blacklisting a significant number of sites that are not illegal content but are considered offensive."

"While this may be considered acceptable where filtering is opt-in by an end user (or parent for family computers), under a mandatory filtering regime this would result in capturing material that is clearly legal but restricted in availability (off the internet) through classification restrictions."

If it were introduced, Australia would be the only liberal democracy in the world to have a mandatory internet censorship regime, the report found.

"The proposal would set Australia apart from other Western liberal democracies that have opted for a transparent, voluntary filtering regime that involves interactions between governments, the police, advocacy groups, ISPs, not-for-profit organisations and the general public in determining how to counteract access to undesirable content. This approach has been successfully applied in the United States, Canada, the United Kingdom and New Zealand."

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