Could The Clean Feed Bypass Parliament?

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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.

New Matilda

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