Times Have Changed, But How Much?


Stephen Conroy’s ambitious plan to censor all Australian internet users has earned him the title of Internet Villain of the Year at the 11th annual Internet Industry Awards in the UK. But the Communications Minister is just the latest in a long line of pro-censorship politicians on both sides of Australian politics.

Before Don Chipp waved his magic anti-censorship wand at all the old fogeys in Parliament House in the early 1970s, we lived in a very prudish nanny state. Most young people these days would be shocked and astounded if they had to live a month under the sort of sexual and moral censorship that their grandparents had to under Bob Menzies. Prior to Chipp becoming the Minister for Customs, one in two US Playboy magazines were banned in Australia and all decisions by Customs officials were kept secret. Don Chipp changed all this by simply making the "banned list" public. This public listings of banned books was the beginning of our national uniform classification scheme.

Free speech in Australia peaked under Bob Hawke’s administration. Gareth Evans’ first Classification Act in 1983 was a landmark civil libertarian response to a rapidly changing entertainment media: the introduction of video had given consumers more power to decide what they would watch. For the adult industry this was a boom period, but, in terms of censorship, it’s been downhill ever since — and things don’t look like changing under Kevin Rudd’s leadership.

In the 1990s, Paul Keating personally intervened on film and computer game classifications by introducing an upper level to the M rating — MA15+ — and then restricting the new computer games industry to that same MA15+ level. This issue is still being hotly debated in State and Commonwealth Attorneys-General Meetings.

The war against censorship lost significant ground during the Howard years as an outright assault was launched on telephone sex, early internet content, TV and film guidelines.

Firstly, we saw the premium rate adult phone services restricted to 1901 numbers with an opt-out filter. If you wanted to access these services you had to apply in writing to your telco. Of course very few people did this and the multimillion dollar industry moved offshore. We then saw the further restriction of the X classification: all fetishes were deemed offensive and removed from the classification. They even banned foot fetishism and mild spanking on adult videos! This was of course better than Howard’s promised ban but it was not in step with community attitudes at the time. Eight national polls conducted by Roy Morgan Research and the McNair group between 1992 and 2006 showed that on average 72 per cent of Australians wanted X rated films legalised around the country.

The Howard government also banned the hosting of X rated material by Australian ISPs. The then communications minister, senator Richard Alston, proudly announced that Australia would have a porn-free internet. For this he was dubbed the "global village idiot" by a number of international internet companies.

And now Kevin Rudd is following Howard as he seeks to coddle us in a retrogressive online censorship regime.

It’s time political parties made the sort of censorship laws that their stated philosophies would logically promulgate rather than the opposite. This year the ALP posted a Consultation Draft of the new National Platform on its website and invited discussion from the public and members alike. Unchanged at Point 54 is the single sentence policy on censorship:

"Labor believes that adults should be entitled to read, hear and see what they wish in private and in public, subject to adequate protection against persons being exposed to unsolicited material offensive to them and preventing conduct exploiting, or detrimental to the rights of others, particularly women and children."

The policy is listed under the heading "Defending free speech". Their 2007 election promise reads as follows:

"Labor will: Provide a mandatory ‘clean feed’ internet service for all homes, schools and public computers that are used by Australian children. Internet Service Providers (ISPs) will filter out content that is identified as prohibited by the Australian Communications and Media Authority (ACMA). The ACMA ‘blacklist’ will be made more comprehensive to ensure that children are protected from harmful and inappropriate online material."

As many have commented on newmatilda.com and elsewhere, the clean feed proposals on the table are even more draconian than this.

Point 54 should be the basis for all federal ALP censorship laws and the equivalent state laws where the ALP is in office. Otherwise it’s a hollow promise intended to keep people feeling good about Labor being in charge of their civil liberties.

This policy hypocrisy has not been without consequences. Research by the Eros Association has shown that over the last 20 years, state Labor governments have created a $40 million black market in adult films by maintaining a prohibition on them even after they have been given the okay by the Federal Classification Board. Effectively this policy saw State Attorneys-General like Rob Hulls in Victoria and Bob Debus in NSW threatening to send people to jail for selling films that John Howard’s censors had approved.

Under ALP policy, the federal platform should override any inconsistencies with state platforms. Sending vendors of adult films to jail is light years away from Point 54 of Labor’s federal platform.

It is true that when it comes to minors having access to adult material on the web, there are problems. Unlike in an adult shop — where the owner simply throws out pimply faced boys — the internet is not equipped with a bouncer to check ID. But there are numerous tools available to parents and educational institutions to restrict access. Education, as usual, is the key here and if parents or schools want to opt into an ISP-based filter, then there are already companies offering this service. It does not require a compulsory filter that will block all adults from accessing otherwise legal adult material. These arguments have been articulated in many outlets, including on newmatilda.com.

Although the Coalition is currently opposing Conroy’s clean feed proposal, when it comes to freedom of speech and censorship issues, there is now little difference between the major parties. Conroy’s attempt to filter the internet is in large part a copy of John Howard’s 2007 attempt to introduce legislation that would stop the Big Brother "Turkey Slap" from being re-broadcast on Australian television, mobile phones and computers.

Howard’s Online Content Services Bill was drafted in January 2007, just in time for the November election. Access to the first draft of this legislation was restricted to a handful of people but it was nevertheless leaked to the Eros Association and Electronic Frontiers Australia. This draft contained lengthy jail sentences and six figure fines for companies and individuals who created, uploaded or hosted adult content on the internet. Where the content was hosted had no impact on liability to prosecution. If the content was created or uploaded in Australia and the provider or creator was based in Australia, there would be a case for prosecution. The words "with an Australian connection" were repeatedly used in the draft legislation.

In the online context, "adult content" is defined as Refused Classification, X or R-rated filmed material and Category 1 and 2 Restricted publications. In the draft, R-rated content was to be exempt if there was a satisfactory age-verification device in place but this did not apply to the other categories. Category 1 magazines that were freely available in newsagents around the country could have had their electronic versions banned and the publishers sent to jail for two years. Category 1 publications include Madonna’s coffee table book Sex; all books by David Hamilton, who moonlights as a photographer of European royalty, and all of ACP’s restricted magazines.

The Eros Association, which represents the adult retail and entertainment industry, worked with two large mainstream groups who would be adversely affected by the proposed Online Content Bill. The Australian Publishers Association (APA) represented the distributors of many erotic and "bodice-ripper" publications that would have been caught up in this legislation. ACP magazines also produced some adult publications which were about to be put online and would have run foul of the new regulations.

Eros approached the Liberal Party organisation rather than the parliamentary wing to let them know how unpopular this legislation would be with the business community — as well as with the four million consumers of adult erotica out there in Voterland. Our bottom line was that if these draconian laws came into effect, we would email and mail these four million adults asking them not to vote for the Coalition and pointing out how severe Howard’s government was on censorship issues. Sending company directors to jail for uploading content that was being sold at the local newsagent proved how totally out of touch they were with reality.

In the end, this strategy proved effective. The second draft of the Bill which surfaced about two months after the first, had had all the criminal provisions removed as long as content was hosted off shore — basically what it was under the 1999 Online Services Act.

This was not the first time that these reforms had been tried. In 2004 NSW became the first state to attempt to legislate the enforcement provisions of the Commonwealth’s 1999 Online Services Act. This would have meant jail terms and large fines for anyone in NSW who created or hosted adult content for upload anywhere in the world. This included amateur couples who may have posted their explicit nude photos to a swingers site in New York. This legislation gave police the right to break down the doors of anyone suspected of running adult content on websites. All they had to do was show a connection between the image and the person living in NSW.

Eros tackled this legislation as it passed through the Upper House in the NSW Parliament in the early hours of the morning. The next day, before the legislation could be sent to the NSW governor for "Royal Assent", we convinced the then Attorney-General Bob Debus to intervene and refer it to an Upper House Committee which included ALP members Meredith Burgmann and Amanda Fazio. While the committee did not formally refute the legislation, it was "decided" that it would be shelved. Although still a law on the NSW Statute Books, it has never been enacted.

It was in response to these censorship debates that the Australian Sex Party (of which I am Convenor) was formed in 2008. The NSW and WA Liberal parties have turned into breeding grounds for extreme right wing religious ideologies and the National Civic Council and the old DLP are regrouping as spurious "inter-faith" organisations. With the demise of the Democrats and the Greens’ retraction of their former progressive platform on moral issues, Labor’s abandonment of their policy platform on censorship has proceeded unchecked. As reactionary religious groups and moral crusaders are grabbing hold of more and more politicians, there has never been a greater need for a strong voice against censorship and for free speech.

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