[LINK] NSW Net censorship Bill - tabled 7 Nov 2001

[Irene Graham]

[Apols if anyone receives this twice. Sent to link yesterday but apparently
didn't arrive on the list.]

On Mon, 12 Nov 2001 17:44:28 +1100 "Chirgwin, Richard"
<Richard.Chirgwin@informa.com.au> wrote:

>Irene,
>
>Some help here. Your message says:
>>Among other things, the Bill criminalises making available content
>>unsuitable for children online, even if the content is only made available
>>to adults.
>
>The bill says:
>>It is a defence to a prosecution under this section for the
>>defendant to prove that access to the matter unsuitable for
>>minors was subject to an approved restricted access system at
>>the time the matter was made available or supplied by the
>>defendant.
>
>How should I resolve what seems to be a contradiction here?

It's not a contradiction. The Bill makes it, flat out, a criminal offence
to make available material unsuitable for children. It says:

'45D (1) A person must not, by means of an on-line service, make available,
or supply, to another person, any matter unsuitable for minors:       
(a)    knowing that is matter unsuitable for minors, or
(b)    being reckless as to whether or not it is matter unsuitable for
minors.
Maximum penalty: Maximum penalty: [$5,500] 50 penalty units for an
individual, [$11,000] 100 penalty units for a corporation.'

(Note: serious issues relative to knowledge and recklessness in this
context are addressed in EFA's analysis.
http://www.efa.org.au/Publish/nswbillanalysis.html)

Hence, if you make available or supply matter unsuitable for minors, you've
committed a criminal offence and the police can arrest and prosecute you.
In court, you can defend yourself by (attempting to) prove that access to
the material was subject to an "approved restricted access system". (Btw,
an "approved" RAS does not mean just giving users a login/password, it
means complying with ABA, or other yet to be made known, requirements to
collect birth certificates or credit card details etc from site visitors).

One might question why the legislation was not written in a form similar
to:
	'A person must not, by means of an on-line service, make available,
or supply to a minor any matter unsuitable for minors...'

or (less ideally for a variety of reasons I won't got into now)
	'A person must not, by means of an on-line service, make available,
or supply any matter unsuitable for minors unless access to the matter is
subject to an approved restricted access system...'

One might also question why onus of proof has been reversed. Instead of the
prosecution having to prove that an RAS was not in place, the defendant has
to prove it was. This reversal is contrary to longstanding justice
principles in Australian law.

The proposed legislation unjustifiably enables prosecution proceedings
against any content provider whether or not a restricted access system was
in place and when content was not made available to anyone other than
adults. It is to add insult to injury to require a content provider to
prove their innocence. 

Furthermore, it is doubtful that content providers could prove that "access
to the matter unsuitable for minors was subject to an approved restricted
access system at the time the matter was made available or supplied by the
defendant". 

Firstly it is not clear whether "at the time" means at the time the
material was initially made available or supplied on-line, or whether
material is deemed to be "made available or supplied" at the time it is
accessed by a person who subsequently draws the material to the attention
of law enforcement authorities. 

Secondly, there is no obvious means by which a content provider can prove a
restricted access system was in place at any given time in the past. 
What will be acceptable proof that a restricted access system was in place?
For example, will content providers need to obtain, at the time they first
make the material available, a sworn affidavit from their ICH/ISP, or from
the ABA, or from a yet to be specified entity? Will they need to obtain a
fresh affidavit each day, lest the ICH/ISP's access security system fails
due to technical inefficiency or error on the part of the ICH/ISP, or
resulting from criminals hacking into the ICH/ISP's system, or any other
reason? 


Irene