net filtering
17 Mar 2009
Could The Clean Feed Bypass Parliament?
There seems to be no way through the Senate for the Government's unpopular internet filter. But could they bypass Parliament completely? Scott Ludlam looks at their options
In order to impose its controversial internet filter, the Government has the choice of trying to pass new laws through a hostile Senate, or working with existing laws, which would mean negotiating its way around a legal minefield and a highly sceptical internet industry.Right now, many people are curious to know whether the Government could bypass Parliament in this way to introduce mandatory net filtering by some other means.
If they choose to bypass Parliament, it could go something like this. Schedule 5 of the Broadcasting Services Act sets out default rules which govern the actions of internet services providers (ISPs) when no industry code is in operation. Under these default rules, the Australian Communications and Media Authority (ACMA) has the power to issue a standard prevention notice requiring ISPs to take reasonable steps to prevent end users from accessing prohibited content. The standard prevention notice could potentially be used to enforce the filter, but in order for the Government to use these default rules, a number of stars would need to be perfectly aligned.
Firstly, ACMA would need to deregister the existing industry code, and it is not at all clear that ACMA has the legal authority to do this.
Secondly, even if the existing industry code could be set aside and the default rules came into effect, it could be argued that as an ACMA prevention notice is being given to all ISPs, it's a legislative instrument and therefore it could be disallowed by Parliament.
Thirdly, under the default rules, the standard prevention notices must be "reasonable". Reasonableness is determined by considering a number of factors, including whether the notice is technically and commercially feasible, and whether it is in the public interest and accommodating towards technological change, as well as considering how it affects social needs and the provision of services. Even if the Government does go down the path of encouraging ACMA to enforce its filter using the default rules, it seems inevitable the decision would be subject to legal challenge on the basis of any one of the above factors.
Alternatively, the Government could indirectly implement its filter by seeking court orders to block content. This again seems like a highly unlikely scenario. In order for such an approach to be successful, the Government would need new legislation in place to both prohibit the offending conduct and impose a relevant injunction. It's unlikely that the current laws would be enough for the plan to work since it would be difficult to argue that the current legal framework mandates ISPs to filter content in the way the Government has proposed.
That just leaves Parliament as the Government's other option. With the Greens, the Coalition and Senator Xenophon yet to be convinced — and the Government still on the losing side of the community debate — that's not looking very hopeful either.
It is not at all clear where the Government is going with this thing — the trial is beset with problems, organisations from Choice magazine to Save the Children and Reporters Without Borders have condemned it, and the blogsphere still teems with scornful, well informed dissent.
The Minister has still offered nothing by way of justification except that net censorship was ALP policy in 2007. This kind of glib deflection does nothing to inspire confidence: with stakes this high we can only hope the Government has seen the writing on the wall and is quietly rethinking the whole idea.
Scott Ludlam will be speaking at newmatilda.com's forum in Brisbane on Tuesday 24 March, The Tangled Web: Beyond an Internet Filter. This is the first of a national series of forums on internet regulation presented by newmatilda.com. You can reserve a seat and find out more details here.
Delicious
Digg
StumbleUpon
Reddit
Newsvine
Facebook
Kwoff
Discuss this article
To participate in the discussion Sign in or Register
Even if the IIA could de-register the industry code my reading of the BSA does not prevent the formation of another industry body.
The current members of the IIA could withdraw their membership and form a new industry body. The new industry body could then create a new industry code.
I could be wrong as IANAL, but it is an interesting thought.
You can be pretty sure that Conroy and Rudd have looked at all the alternatives and worked out a way to make it work, for them! This Government is filled with Fundamentalist Religious Mafia, up to and including Rudd, Conroy, Smith. A dictatorship is not all that far from their intentions. Dictators always think that they know better than anyone else, and they always have to look after our morals, as they consider them lacking. Possibly this is also another way for Rudd to show the world how wonderful he is, or as he considers himself. Unlike Howard, Rudd never looks embarrassed strutting the worlds stages. He looks like he loves it!
Possibly our only ‘saviour’ is the fact that everything this Government does, fails miserably! Just look at the list of what they have attempted, and look at what they have succeeded in introducing. Looks pretty shabby, hey?! The list of stuff-ups is never-ending.
So about the most you could say for Rudd and Co., is totally incompetent.
But who needs Fielding, when you have Rudd and Conroy etc. to keep the Religious and patronizing fires burning.
Maybe Rudd learned of the ways to censor all comment, whether political or otherwise, from his mates in Beijing. Maybe he is still learning from them.
I am not beating a drum for Turnbull/Costello and their mob, they have proved they are actually worse. Says something about the democratic process in Australia. Like the USA! S…t always rises to the surface! Dazza.
As much as I want to disagree with Dazza, I think he has a good point. Australia has a very dark history when it comes to censorship, right from our founding days. Censorship, regulation and banning anything that’s seen to be a problem is a proud Aussie tradition. It’s much easier banning the symptoms or legislating against them than actually tackling root causes (look at the pathetic binge drinking debate for example).
We’ve had systems for monitoring the masses come up in the past - the Australia card, which was soundly defeated by the masses, the Centrelink smart ID card (wondering how that’s progressing?) and now the Internet filter. The prospect of filtering and monitoring everything that goes in and out of the country through the internet must be like a wet dream for a morally obsessed government pandering to the fundamentalist Christian vote.
It’s just too good to resist and like Dazza, I’m pretty sure they will push it through no matter what or how unfeasible it may be. (Remember how many people, many of them single mothers, lost their jobs when phone sex chat numbers were banned? That didn’t stop a morally obsessed government from banning those, not for a minute.)
There’s just too much dodgy stuff going on here: the level of secrecy around this issue, the fact that Conroy has refused to even be interviewed about it for 6 months now and the overt attempts by the Department to quash public debate and dissent on the matter in what’s supposed to be one of the most successful liberal democracies in the world is outrageous and reeks of something more sinister.
The best hope we have is that when the filter does go live it will be such an unmitigated technical disaster and there will be such a massive outcry, the government will be forced to take it right back down and hang its collective head in shame. Of course, they could always follow China’s example, brand anyone complaining about censorship a threat to national security (or maybe a paedophile) and send them away to a re-education camp for 25 years. Seems like we’re heading that way in any case.
http://zielwolf.blogspot.com
This whole nonsensical filter saga reeks of misguided religious ideology. Lo and behold, look at which lobby groups continue to push for it. Undue influence from these is yet another good reason to cleanly and properly separate Church & State in Australia: http://www.facebook.com/group.php?gid=54429760859
Judging by KRudds inaction in regard to restoring habeas corpus to its former status after Howard’s anti-terror law tampering, & now the new anti-gang laws allowing police to hack your computer & kick your door in at any given moment without a warrant I’d suggest that zeilwolfs scary finishing comments are all to real.
Are we forming some sort of pattern here?
"if you want a picture of the future, imagine a boot stamping on a human face - forever"
George Orwell - from "Nineteen Eighty-Four"
This is definitely dangerous country. Sites can be black listed in secret without reason. We will never know if they decide to block political content. The moralists are taking over.
A check of sales in the US found that more pornography was consumned in so called Republican states than in Democratic states yet Rupugs always claimed a higher moral ground. It is so very Victorian (era not state) where they covered the legs of tables so people would not get aroused and then dissolved into debauchery in private.
Truly thought crime zone.