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2016-2017-2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
FREEDOM OF SPEECH LEGISLATION AMENDMENT (CENSORSHIP) BILL 2018
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator Leyonhjelm)
FREEDOM OF SPEECH LEGISLATION AMENDMENT (CENSORSHIP)
BILL 2018
OUTLINE
Free speech is fundamental to a free and prosperous society. All Australians, regardless of
their political inclinations, benefit from being able to freely express their views. The process
of arriving at the truth relies on debate, which relies upon free speech.
The right to free speech is not a creation of government, but it can be thwarted by
government. Legislative restraints on free speech should only be considered to protect other
freedoms.
The Freedom of Speech Legislation Amendment (Censorship) Bill 2018 is part of a suite of
four bills that amount to a comprehensive defence of free speech in Commonwealth law. The
other bills in the suite are the: Freedom of Speech Legislation Amendment (Security) Bill
2018; Freedom of Speech Legislation Amendment (Insult and Offend) Bill 2018; and Racial
Discrimination Law Amendment (Free Speech) Bill 2016.
Free speech involves both the freedom to communicate as well as the freedom to receive
communications. This Bill focusses on the freedom to receive communications. It removes a
number of bans on what adults can choose to read, watch, play and listen to.
Schedule 1
Schedule 1 removes various bans relating to publications, films and computer games.
In particular, Schedule 1 removes the ban on publications, films and computer games that
offend against standards of morality, decency and propriety.
No change is made to the ban on publications, films and computer games that
promote, incite or instruct in crime, or that portray children engaged in sexual activity.
No changes are made to the criminal offences in the Criminal Code and Customs Act
1901 for dealings in material that depicts children engaged in sexual activity or
subject to torture.
Publications, films and computer games that are not banned will continue to be
subject to classification rules that restrict access where material is unsuitable for a
minor to read, see, view or play.
Schedule 1 removes the specific ban on publications, films and computer games that advocate
terrorism. As publications, films and computer games that promote, incite or instruct in
crime will continue to be banned, and as terrorism is a crime, the specific ban on material that
advocates terrorism only serves to ban material that relates to terrorism but cannot be said to
promote, incite or instruct in terrorism.
Schedule 1 removes a requirement for the Classification Board to ban offensive
advertisements of legally available publications, films and computer games, but retains the
Board's discretion to ban such advertisements or to approve them subject to conditions.
1
Schedule 1 removes a ban on certain publications, films and computer games in parts of the
Northern Territory, where those publications, films and computer games are legally available
in the rest of the country. This ban is thinly-veiled racism.
Schedule 2
Schedule 2 removes bans on broadcasting, datacasting and online content, with a specific
focus on bans affecting services provided behind paywalls as such services are less likely to
involve unsolicited or underage viewing.
Schedule 2 narrows the guidance provided by government to broadcasting industries in the
development of codes of practice, so that only non-subscription broadcasting services are
encouraged to prevent the broadcasting of programs that do not meet community standards of
suitability.
Schedule 2 removes a requirement on subscription television broadcasters to not broadcast
programs that have been classified X 18+, and instead allows subscription television
broadcasters to broadcast both R 18+ and X 18+ programs, provided that access to such
programs is restricted by disabling devices acceptable to the regulator.
R 18+ and X 18+ programs are programs that are classified as unsuitable for a minor
to see. X 18+ programs are a subset of those programs that contain depictions of
actual, consensual, non-violent, non-demeaning sex.
Schedule 2 narrows the guidance provided by government to datacasting licensees in the
development of codes of practice, so that only datacasting services that are not subject to an
access-control system are encouraged to prevent the transmission of matter that does not meet
community standards of suitability.
Datacasting services deliver text, data, speech, music, images and other content using
broadcasting services bands.
Schedule 2 removes a requirement on online content services to not provide access to content
that has been or would be classified X 18+, 'category 1 restricted' or 'category 2 restricted',
and instead allows access to such content provided that access is subject to a restricted access
system.
The 'category 2 restricted' classification applies to publications with offensive
depictions of consensual sex or of abhorrent phenomena deemed unsuitable for a
minor to see or read.
The 'category 1 restricted' classification applies to publications that are deemed
unsuitable for a minor to see, that contain offensive depictions of nudity, or that
contain offensive descriptions of violence or consensual sex.
Schedule 3
Schedule 3 removes a ban on broadcasting electoral advertising relating to a federal, state,
territory or local election on election day or on the preceding Thursday or Friday.
2
This ban does not prevent broader electioneering on those days. Moreover, many
voters cast their votes before election day, and voters need not be shielded from
electioneering in order to make well-considered votes.
The best way to ensure that votes are well-considered is to make voting voluntary.
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NOTES ON CLAUSES
Clause 1: Short Title
1. This clause provides for the Bill, when enacted, to be cited as the Freedom of Speech
Legislation Amendment (Censorship) Act 2018.
Clause 2: Commencement
2. This clause provides that the provisions of the Bill, other than items 2 and 3 of
Schedule 1, commence on the day after Royal Assent.
3. Items 2 and 3 of Schedule 1 relate to the National Classification Code and commence
six months after Royal Assent. This delay will allow States and Territories that have
conferred classification responsibilities on Commonwealth bodies to consider and take
account of these provisions.
Clause 3: Schedules
4. Each Act specified in a Schedule to this Bill is amended or repealed as is set out in the
applicable items in the Schedule. Any other item in a Schedule to this Bill has effect
according to its terms.
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Schedule 1 -- Amendments to the National Classification Code
Classification (Publications, Films and Computer Games) Act 1995
Items 1 and 7 - Section 3A and Part 10
5. Part 10 of the Classification (Publications, Films and Computer Games) Act 1995
prohibits the possession, control and supply of certain material in certain areas of the
Northern Territory, and empowers police officers to seize such material in those areas.
Criminal penalties of up to two years' imprisonment apply.
6. The prohibited material includes material that has been refused classification such that
it is not available across Australia. However, it also includes material that is available in the
rest of Australia, such as restricted publications that may be required to be packaged in plain,
opaque material, and films classified X 18+.
7. The affected areas of the Northern Territory are those determined by the Indigenous
Affairs Minister.
8. This arrangement is unwarranted. The people of an area of the Northern Territory
selected by the Indigenous Affairs Minister should not face criminal penalties for possessing,
controlling or supplying material that it is legal to possess, control and supply elsewhere in
Australia.
9. Accordingly, item 7 repeals Part 10, so that the area-specific prohibition and the
associated police powers are removed. Item 1 removes reference to this prohibition and this
power from the simplified outline of the Act.
Items 2 and 3 - Section 6
10. The National Classification Code (the Code) guides the classification of publications,
films and computer games. Under current law, the Code can only be amended by agreement
of the Minister and each Minister of a participating State or Territory.
11. One classification set out in the Code is 'refused classification'. This classification
amounts to a ban, because State and Territory law provides that material may not be sold if it
is 'refused classification'.
12. The current Code states that publications, films and computer games are to be
'refused classification' if they:
describe, depict, express or otherwise deal with matters of sex, drug misuse or
addiction, crime, cruelty, violence or revolting or abhorrent phenomena in
such a way that they offend against the standards of morality, decency and
propriety generally accepted by reasonable adults to the extent that they
should not be classified;
describe or depict in a way that is likely to cause offence to a reasonable adult,
a person who is, or appears to be, a child under 18 (whether the person is
engaged in sexual activity or not); or
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promote, incite or instruct in matters of crime or violence.
13. Each of these criteria for refusing classification under the current Code is too broad.
Regarding the first criterion, a person should not be barred from purchasing
material simply because other people find that material revolting, abhorrent,
immoral, indecent or improper.
Regarding the second criterion, a person should not be barred from purchasing
descriptions or depictions of children not engaged in sexual activity simply
because other people find the descriptions or depictions offensive.
Regarding the third criterion, a person should not be barred from purchasing
material simply because it promotes, incites or instructs in matters of
non-criminal violence. This could be said to cover material ranging from
instructions in martial arts to The Dirty Dozen.
14. Accordingly, items 2 and 3 amend the current law so that the circumstances in which
material is 'refused classification' is narrowed. Item 3 empowers the Minister to amend the
Code without needing the agreement of each Minister of a participating State or Territory.
Item 2 requires that this amendment must ensure that a publication, film or computer game
may only be classified as 'refused classification' if it:
depicts or describes in a way that is likely to cause offence to a reasonable
adult a person who is, or appears to be, a minor engaged in sexual activity; or
promotes, incites or instructs in matters of crime.
15. It is acknowledged that, if a participating State or Territory disagrees with narrowing
the circumstances in which material is 'refused classification', that State or Territory may
decide to no longer confer classification responsibilities on bodies established by this Act.
Items 4 and 5 - Section 9A
16. Under the current Code, material that promotes, incites or instructs in matters of crime
must be refused classification. The doing of a terrorist act is a crime. So the current Code
requires material that promotes, incites or instructs in a terrorist act to be refused
classification. Nothing in this Bill changes this requirement.
17. At the same time, Section 9A of the Act currently requires that material that advocates
the doing of a terrorist act must be refused classification.
Material that advocates the doing of a terrorist act is broadly defined. It
includes material that indirectly promotes terrorism. It also includes material
that directly praises terrorism where there is a substantial risk that such praise
might lead a mentally impaired person to engage in a terrorist act.
Against this, material that advocates the doing of a terrorist act is defined to
exclude material that merely depicts or describes terrorism and does so as
entertainment, satire, or as part of public discussion or debate.
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18. Given the Code's requirement that material that promotes, incites or instructs in a
terrorist act be refused classification, section 9A merely serves to refuse classification to
material that does not promote, incite or instruct in terrorism, but nonetheless still advocates
terrorism (at least from the perspective of a mentally impaired person). Such material could
be said to include Michael Collins and Rambo III (which was originally dedicated to 'the
brave Mujahideen fighters of Afghanistan'). As refusing classification for such material
would be excessive, item 5 repeals section 9A. Praising or indirectly promoting terrorism is
disagreeable, but free speech means little if only agreeable speech is protected. Item 4 is
consequential to item 5.
Item 6 - Subsection 29(4)
19. Currently subsection 29(1) of the Act gives the Classification Board a discretion to
refuse to approve an advertisement for a publication, film or computer game, and allows the
Board to approve such an advertisement subject to conditions. Subsection 29(5) requires the
Board to refuse to approve an advertisement for a publication, film or computer game if the
publication, film or computer game has been classified as 'refused classification'. These
provisions are reasonable and are unchanged by this Bill.
20. At the same time, subsection 29(4) of the Act requires the Board to refuse to approve
an advertisement for a publication, film or computer game if the advertisement:
describes, depicts or otherwise deals with matters of sex, drug misuse or
addiction, crime, cruelty, violence or revolting or abhorrent phenomena in
such a way that it offends against the standards of morality, decency and
propriety generally accepted by reasonable adults to the extent that it should
not be approved;
depicts or describes, in a way that is likely to cause offence to a
reasonable adult, a person who is, or appears to be, a child under 18 (whether
the person is engaged in sexual activity or not);
promotes crime or violence, or incites or instructs in matters of crime or
violence; or
is used, or is likely to be used, in a way that is offensive to a reasonable adult.
21. Given the discretion of the Board under subsection 29(1) and requirement on the
Board under subsection 29(5), the requirement on the Board under subsection 29(4) is overly
prescriptive. Accordingly, this item removes the current criteria in subsection 29(4), and
inserts instead a narrower requirement to refuse approval if the advertisement:
depicts or describes in a way that is likely to cause offence to a reasonable
adult a person who is, or appears to be, a minor engaged in sexual activity; or
promotes, incites or instructs in matters of crime.
7
Schedule 2 -- Bans on broadcasting, datacasting and online content
Broadcasting Services Act 1992
Item 1 - Paragraph 123(2)(a)
22. Currently paragraph 123(2)(a) of the Broadcasting Services Act 1992 states that codes
of practice developed for a section of the broadcasting industry may relate to preventing the
broadcasting of programs that, in accordance with community standards, are not suitable to
be broadcast by that section of the industry.
23. This guidance may be appropriate for broadcasting that is particularly susceptible to
unsolicited or underage viewing or listening. However, this guidance could prompt
unnecessary constraint on subscription broadcasting, which is not so susceptible to
unsolicited and underage viewing or listening.
24. Accordingly, this item repeals the current paragraph 123(2)(a) and inserts in its place
guidance that codes of practice for a section of the broadcasting industry may relate to:
preventing the broadcasting of programs that have been classified as 'refused
classification'; and
for services other than subscription services, preventing the broadcasting of
programs that, in accordance with community standards, are not suitable to be
broadcast by that section of the industry.
Items 2 and 3 - Subclause 10(1) of Schedule 2
25. Currently subclause 10(1) of Schedule 2 of the Act requires subscription television
broadcasters to not broadcast programs that have been classified as 'refused classification' or
X 18+.
26. It also requires subscription television broadcasters to not broadcast programs that
have been classified as R 18+ unless:
access to such programs is restricted by disabling devices acceptable to the
regulator, and
the Parliament has approved the broadcast of such programs following
research on community standards by the regulator and a recommendation from
the regulator.
27. R 18+ and X 18+ programs are programs that are classified as unsuitable for a minor
to see. X 18+ programs are a subset of those programs that contain depictions of actual,
consensual, non-violent, non-demeaning sex.
28. X 18+ programs should not be subject to a blanket ban with respect to subscription
television broadcasts, while R 18+ programs are not: depictions of sex do not warrant greater
restriction than depictions of violence. Programs under either classification should be able to
be broadcast on subscription television provided that access to such programs is restricted by
disabling devices acceptable to the regulator.
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29. Accordingly, items 2 and 3 amend subclause 10(1) so that:
X18+ programs are not banned on subscription television,
the broadcasting of X18+ programs is conditional on access being restricted
by disabling devices, and
the requirement for parliamentary approval of a recommendation from the
regulator before R 18+ programs can be broadcast is removed.
Items 4 and 5 - Schedule 6
30. Schedule 6 of the Act concerns datacasting services, which deliver text, data, speech,
music, images or other content using broadcasting services bands.
31. Currently paragraph 28(2)(a) of Schedule 6 of the Act states that codes of practice
developed for datacasting licensees may relate to preventing the transmission of matter that,
in accordance with community standards, is not suitable to be transmitted by datacasting
licensees.
32. This guidance may be appropriate for datacasting that is particularly susceptible to
unsolicited or underage viewing or listening. However, this guidance could prompt
unnecessary constraint on datacasting that is subject to an access-control system, because
such datacasting is not so susceptible to unsolicited and underage viewing or listening.
33. Accordingly, item 5 repeals the current paragraph 28(2)(a) of Schedule 6 of the Act,
and inserts in its place guidance that codes of practice for datacasting licensees may relate to:
preventing the transmission of matter that has been classified as 'refused
classification'; and
for services that are not subject to an access-control system, preventing the
transmission of matter that, in accordance with community standards, is not
suitable to be transmitted by datacasting licensees.
34. Item 4 inserts a definition of access-control systems in relation to datacasting content,
such that it means a system under which:
persons seeking access to the content have been issued with a Personal
Identification Number that provides a means of limiting access by other
persons to the content; or
persons seeking access to the content have been provided with some other
means of limiting access by other persons to the content.
35. This definition reflects the definition of access-control systems in relation to online
content in Schedule 7 of the Act.
9
Items 6 and 8 to 14 - Schedule 7
36. Schedule 7 of the Act concerns content services, which are services that deliver text,
data, speech, music, images or other content by means of a carriage service, such as the
internet.
37. Currently Schedule 7 of the Act makes content services susceptible to 'take-down'
notices if they host content that has been classified as 'refused classification' or X 18+.
38. It also makes content services susceptible to 'take-down' notices if they host content
that has been classified as R 18+, unless access to the content is subject to a restricted access
system.
A restricted access system is an access-control system declared by the
regulator in a legislative instrument.
39. X 18+ content should not be subject to a blanket online ban while R 18+ content is
not: depictions of sex do not warrant greater restriction than depictions of violence. Content
under either classification should not be susceptible to 'take-down' notices if access to the
content is subject to a restricted access system.
40. Accordingly, items 6 and 8 to 14 amend Schedule 7 of the Act so that, in line with the
current treatment of R 18+ content, X18+ content is only susceptible to 'take-down' notices if
access to the content is not subject to a restricted access system.
Items 7 and 15 - Schedule 7
41. Currently Schedule 7 of the Act makes content services susceptible to 'take-down'
notices if they host electronic editions or audio recordings of publications that have been
classified as 'refused classification', 'category 2 restricted' or 'category 1 restricted'.
The 'category 2 restricted' classification applies to publications with offensive
depictions of consensual sex or of abhorrent phenomena deemed unsuitable
for a minor to see or read.
The 'category 1 restricted' classification applies to publications that are
deemed unsuitable for a minor to see, that contain offensive depictions of
nudity, or that contain offensive descriptions of violence or consensual sex.
42. State and Territory law provides that publications that are refused classification may
not be sold. In contrast, publications that are classified as 'category 1 restricted' or 'category
2 restricted' may be sold subject to conditions such as being contained in a sealed package
displaying certain markings.
43. Electronic editions and audio recordings of publications that have been classified as
'category 1 restricted' or 'category 2 restricted' should not be subject to a blanket online ban,
when the corresponding publications are not subject to a blanket ban in the physical world of
paper and packaging. Such electronic editions and audio recordings should not be susceptible
to 'take-down' notices provided that access to those electronic editions and audio recordings
is subject to a restricted access system.
10
44. Accordingly, items 7 and 15 amend Schedule 7 of the Act so that electronic editions
or audio recordings of 'category 1 restricted' or 'category 2 restricted' publications are only
susceptible to 'take-down' notices if access to these electronic editions or audio recordings is
not subject to a restricted access system.
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Schedule 3 -- Amendments relating to the election blackout period
Broadcasting Services Act 1992
Items 1 and 2 - Schedule 2
45. Currently clause 3A of Schedule 2 of the Broadcasting Services Act 1992 bans
broadcasters from broadcasting electoral advertising relating to a federal, state, territory or
local election on election day or on the preceding Thursday or Friday.
46. This ban does nothing to stop broader electioneering on those days. Moreover, many
voters cast their votes before election day, and voters need not be shielded from
electioneering in order to make well-considered votes. If there were a need to ensure that
votes are more carefully considered, the best course of action would be to make voting
voluntary.
47. Given this, item 2 repeals clause 3A of Schedule 2, to ensure that there is no ban on
electoral advertising immediately prior to elections. Item 1 repeals definitions made
redundant by item 2.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
FREEDOM OF SPEECH LEGISLATION AMENDMENT (CENSORSHIP) BILL 2018
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
The Bill removes various bans relating to publications, films and computer games, removes
various bans on broadcasting, datacasting and online content, and removes a ban on
broadcasting electoral advertising on election day or on the preceding Thursday or Friday.
Human rights implications
The Bill protects the right to freedom of expression.
Freedom of expression involves both the freedom to communicate as well as the freedom to
receive communications. That is, freedom of expression includes the freedom to choose what
to read, watch, play and listen to.
The right to freedom of expression is closely related to the rights of freedom of association,
assembly, thought, conscience, religion and participation in public affairs.
Conclusion
The Bill is compatible with human rights because it enhances the right to freedom of
expression.
Senator Leyonhjelm
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