Australian Internet Censorship May 2006

Senator the Hon Helen Coonan
Minister for Communications, Information Technology and the Arts
Deputy Leader of the Government in the Senate.

Media Release
040/06 
11 May 2006

.xxx proposal stopped 

The Minister for Communications, Information Technology and the Arts, Senator Helen Coonan, today welcomed the decision by the international Internet domain name body, ICANN, to block the establishment of a .xxx domain for adult content.

“This is a positive outcome that has prevented the creation of a domain that could have acted as a haven for illegal and offensive content,” Senator Coonan said.

“The Australian Government had previously expressed our opposition to the creation of a .xxx domain through representations made to ICANN’s Governmental Advisory Committee by my Department.

“The Australian Government had grave concerns about the .xxx proposal, stating strong objection to any measure that would lead to an increase in pornography on the Internet, push offensive content on vulnerable groups or create a haven for illegal material.

“ICANN’s decision is also a reassurance that this body, responsible for overseeing the administration of domains at a global level, has robust decision-making processes that take account of stakeholders’ input.

“The ability for stakeholders, including Governments, to provide public policy input into the decision-making process is a strength of the ICANN model.

“Australia’s involvement in international discussions surrounding the .xxx proposal has been consistent with the Government’s long standing interest in ensuring that Australians using the Internet are able to do so in a safe and secure way.”

The Australian Online Content Scheme was established in 2000, banning X and RC rated content from being hosted in Australia and establishing a complaints-based mechanism under Schedule 5 in the Broadcasting Services Act 1992.

Internet Service Providers and Internet Content Hosts are also regulated through enforceable industry codes of practice that are developed by the Internet Industry Association and registered by the Australian Communications and Media Authority (ACMA).

An audit of the top ISPs conducted by ACMA at the Minister’s request and released today showed high levels of compliance with current industry codes.

“The Government is serious about cracking down on illegal and offensive material on the Internet and I am looking at ways in which we can continue to help families, children and consumers have a safer Internet experience,” Senator Coonan said.

***

No certainty for ISPs on filters. The Australian 11.05.06

THE federal Government has given the internet industry mixed signals over the performance of current laws designed to shield consumers from porn and offensive content online.

The Australian Communications and Media Authority's audit found that the majority ISPs were honouring their obligations to keep consumers safe online under the co-regulatory scheme.

However, a spokeswoman for the Minister said that the federal Government had not ruled out ISP-level content filtering and that the Senator's comments shouldn't be taken as indication of how well current regulation policy was working.

***

Net users to be given anti-porn software. The Age 13.05.06

Australia's 6 million internet subscribers will be given software to filter out pornography for free under a federal government plan to toughen controls on internet content.

But the government is reluctant to put its stamp of approval on software that may later turn out to have flaws, so it is leaning towards creating a list of software suppliers for consumers to chose from and making them available on the NetAlert site, the paper says.

***

Stephen Conroy from the Labor Paty used the May 2006 Senate Estimates to question the Telstra about internet filtering.

Speakers are:
Steven Conroy - Labor Party
Helen Coonan - Liberal Party -Minister for Communications, Information Technology and the Arts
Kate Lundy - Labor Party
Michael Ronaldson - Liberal Party

Senator CONROY—I want to ask a few questions about Telstra’s approach to protecting children from extreme pornographic and violent material on the internet. I understand that Telstra offers its customers PC based filters at cost price; is that correct?

Talk Mr Quilty—Correct.

Talk Senator CONROY—How much do these filters typically cost to customers? What is the price range?

Talk Mr Mullane—The NetNanny filter is about $54.

Talk Senator CONROY—I think NetNanny is around $55. Can you advise the committee what proportion of Bigpond customers have taken up these filters?

Talk Mr Mullane—I would have to take that on notice, but it is not a high percentage.

Talk Senator CONROY—What about the kids in those households where parents have not installed a filter to their PC?

Talk Mr Mullane—I would expect that the parents would be operating some form of parental supervision. There is also quite a lot of information about what to be aware of with children using the internet.

Talk Senator CONROY—So at present Telstra does not provide kids in these households with any protection from exposure to things like child pornography and violent sex sites?

Talk Senator RONALDSON—With the greatest of respect to Mr Mullane, it is a bit hard for him to say what is happening in households without filters.

Talk Senator CONROY—I asked about what Telstra was doing.

Talk Senator RONALDSON—The question before. There could be a wide variety—

Talk Senator CONROY—This is just straight-up interference in—

Talk Senator RONALDSON—I think we need to—

Talk Senator CONROY—Mr Mullane is answering the questions perfectly competently—

Talk Senator RONALDSON—The question needs to be—

Talk CHAIR—We are probably drifting away from technological sorts of answers into sociological ones.

Talk Senator CONROY—I am asking what Telstra is doing. Cut it out.

Talk CHAIR—I am not really sure that is Telstra’s responsibility, but there you are. If you wish to answer, please proceed.

Talk Mr Mullane—Telstra is making information available to its customers and we are providing filters for those customers that desire to access those. We operate in close conjunction with the Internet Industry Association and the codes of conduct that they recommend their members follow. The ACMA has done some analysis of what is going on in the industry in this regard, and Telstra Bigpond was given a tick on all counts. Basically, this is an issue where Telstra’s position is that we are very happy to go to great lengths to advise our customers what they should be aware of. We recently emailed all of our customers about dangers to internet users and what sorts of steps they need to be aware of and to take. I think there was a mail-out to 2.3 million customers quite recently. We will continue to adopt those sorts of proactive approaches.

Talk Senator CONROY—A remarkably non-technical answer there, and quite detailed I thought, Senators Eggleston and Ronaldson. You may be aware there is a trial of ISP filtering to be held in Tasmania at the end of July. I understand that Telstra does not intend to participate in this trial; is that correct?

Talk Mr Mullane—That is correct.

Talk Senator CONROY—Can you explain why?

Talk Mr Mullane—We fundamentally believe that the protection achieved through PC based filtering is much more effective than any network based approach. The PC based approach can actually be configured to suit the particular situation that exists and the customer’s requirements. It can block other services, not just web based content—so chat rooms, news services, peer-to-peer types of traffic. In fact, the PC based filters are quite difficult to circumvent. On the other hand, ISP web based filtering only blocks out particular web pages. It is a sort of one-size-fits-all approach and it does require a large amount of processing power, particularly for large ISP operations. It has the potential to degrade network performance. We are concerned about the scalability of this for a large operation like Bigpond. I think the overriding issue that we will have, or the area of concern, would be that it would lead to a false sense of security for our customers. They would think that everybody is going to be now safe because we have undertaken this activity and, as I say, it does not—

Talk Senator CONROY—Is there a suggestion that, accompanying this, nothing else would happen—you would stop selling the filters, you would stop writing to them explaining the dangers? You would just automatically do that as well, would you?

Talk Mr Mullane—There could be a tendency for customers to form that impression themselves.

Talk Senator CONROY—Not if you wrote to them and told them it was not sufficient.

Talk Mr Mullane—Yes, but we—

Talk Senator CONROY—Like you are doing with the filter.

Talk Mr Mullane—Exactly. You cannot make customers’ minds up for them. You can inform them. We would not want customers to be of the opinion that their household was fully protected.

Talk Senator CONROY—To use your own description, you said that the number of people who have taken up filters was on a ‘small scale’.

Talk Mr Mullane—By their choice.

Talk Senator CONROY—So a small number have taken up the—

Talk Mr Mullane—A small percentage, I would say.

Talk Senator CONROY—A small percentage? Yes, that would be a small number.

Talk Mr Mullane—Not necessarily.

Talk Senator CONROY—So the overwhelming majority, the vast majority, of children do not have any protection and Telstra is not interested in assisting in the process—

Talk Mr Mullane—No.

Talk Senator CONROY—of protecting children from child pornography?

Talk Mr Mullane—I think all the answers I have just given would not lead to agreement with that.

Talk Senator CONROY—The proponents of the trial think they can do a bit better than the current filters. They are not advocating doing away with filters; they are not advocating with the other arms of your policy. Why not be in it and see if it adds an enhanced protection for children?

Talk Mr Mullane—We are not persuaded that it has sufficient merit for the size of Bigpond’s operations.

Talk Senator CONROY—Is ISP filtering just bad for business?

Talk Mr Mullane—People are interested in purchasing internet services for a very wide range of reasons, and they do so in significant numbers. I think filtering is a very important part of what customers are able to access and we will continue to make sure they are well aware of it.

Talk Senator CONROY—Would it reduce traffic over your network if you filtered? Would it be bad for business and would customers would leave?

Talk Mr Mullane—Let me put it this way. Spam is another thing that is perhaps not so great for business. We are filtering out something like 24 million emails a day that are from spam related sources. That is a very high percentage of traffic. It is bad for business. We do not like it. We wish it was not there, but it is. It is there and it is a fact of life.

Talk Senator CONROY—Have you made any estimate of what proportion of the traffic over the internet is porn?

Talk Mr Mullane—No. I have not.

Talk Senator CONROY—No figures at all?

Talk Mr Mullane—I do not have it here, but—

Talk Senator CONROY—If I said to you that I have heard statements that the two biggest items on the net are gambling and porn, would that be a surprise to you?

Talk Mr Mullane—I am not sure. I have not thought about it.

Talk Senator CONROY—No idea?

Talk Mr Mullane—Spam is pretty big, too.

Talk Senator CONROY—No, but spam coming in is something that you do not want. These are things people are going out and getting.

Talk Mr Mullane—I do not have a view on that. If you would like me to see if Telstra has a view on it, I could take that question on notice.

Talk Senator CONROY—No. I was asking if there was a factual issue here, not for a review—

Talk Mr Mullane—I do not have information to that extent, but I can—

Talk Senator CONROY—Is anyone else in Telstra familiar with this?

Talk Mr Quilty—If you look at the most frequently visited web sites, which are sometimes published, I think you usually find that NineMSN, ABC and of course Sensis are usually up the top. We can provide more detail on that, I am sure.

Talk Senator CONROY—Thank you. In the UK, BT offers a clean feed to its customers. Why does Telstra not offer its customers a service that blocks access to these illegal sites identified by ACMA?

Talk Mr Quilty—I think we do make sure that those sites that are blocked by ACMA are blocked by our filters.

Talk Mr Mullane—If any sites are given a take-down notice, we will take them down immediately. We certainly comply with all the requirements.

Talk Senator CONROY—BT reckons it has blocked 30,000 web pages that contain these sorts of offensive, violent and child pornographic images. Do you block these 30,000 websites or are they available through Telstra?

Talk Mr Mullane—I would have to get the numbers. I suspect not, but let us get the numbers.

Talk Senator CONROY—You do not block any. I know it sounds silly, but you are not blocking anything.

Talk Mr Quilty—We certainly take down—

Talk Mr Mullane—We take down—

Talk Senator CONROY—They are Australian sites. These are 30,000 overseas sites. BT blocks them, but they are available through Telstra.

Talk Mr Mullane—I would have to have more details of those.

Talk Senator CONROY—Is this not a case where you are just doing the minimum that the government requires you to do?

Talk Mr Quilty—I know we are fully complying with the law. I also presume that the filters made available to a PC level would block a significant proportion of the objectionable content.

Talk Mr Mullane—Absolutely, very much so. It is our position that the filters are the way to go, and anyone who has concerns can get a filter.

Talk Senator CONROY—I am voicing a few at the moment. BT did this off their own bat. The government did not make them. BT did not need the government to increase regulation or suggest it. They just did it off their own bat. But there is an extra option here to protect children from these sorts of child pornographic images and violent depictions, and Telstra are just sitting there saying, ‘No, we are not going to do anything about it,’ when there is an extra step you could take by participating in this. Is Telstra happy to be used for child porn?

Talk Mr Mullane—I would not agree with that description.

Talk Mr Quilty—Certainly not.

Talk Senator CONROY—Why do you not block these 30,000 sites?

Talk Mr Mullane—For a start, I have only got your word that that is happening.

Talk Senator CONROY—No, it is quoted in an article in the Herald Sun, Saturday, 15 April 2006, page 10, Weekend section, ‘The evil trade’.

Talk Mr Mullane—I am quite happy to go away and assess what Telstra’s own views on that sort of information is.

Talk Senator CONROY—Minister, you have said you are interested in seeing the results of the Tasmanian trial.

Talk Senator Coonan—Yes.

Talk Senator CONROY—Are you disappointed that Telstra has refused to take part in it, given you are interested in the outcome?

Talk Senator Coonan—I would expect that the people participating in the trial would be capable of seeing whether this technology will work and I am vitally interested in whether or not it can work and will work, and will act if it does.

Talk Senator CONROY—Are you disappointed that Telstra does not want to participate in this trial, given that you have raised concerns about these issues?

Talk Senator Coonan—That is a matter for Telstra.

Talk Senator CONROY—It is a matter for you to have an opinion on.

Talk Senator Coonan—It is entirely a matter for Telstra.

Talk Senator CONROY—You do not have an opinion on whether Telstra should participate in a trial that could block child porn sites?

Talk Senator Coonan—That is a matter for Telstra. If they wish to do so, of course they can.

Talk Senator CONROY—You are one of the two shareholding ministers.

Talk Senator Coonan—Excuse me, Senator Conroy, let me answer the question. The trial, I understand, will trial the technology. That is the purpose of it. Whether Telstra participates or not is a matter for them.

Talk Senator CONROY—You are currently one of the two designated ministers under the legislation who acts as a 51 per cent owner of Telstra. So it is not just a matter for Telstra’s management. It is actually a matter for the owners of Telstra, which at the moment is you. So as the owner of Telstra are you comfortable—

Talk Senator Coonan—The objective of the test is to trial the technology. If it is trialled by people who participate in it and you get an answer, that is the objective.

Talk Senator CONROY—You do not think it would be helpful for Telstra to be—

Talk Senator Coonan—Not to require every ISP provider to participate.

Talk Senator CONROY—It is not every; it is just Telstra. You own it. You control it. If you told them to do it—

Talk Senator Coonan—Senator Conroy, I cannot understand why you wish to engage in this sort of argumentative nonsense. The objective here is to trial the technology, and I am satisfied it will be trialled.

Talk Senator CONROY—Have you made any representations to Telstra that they should participate in the trials?

Talk Senator Coonan—I do not make representations to Telstra.

Talk Senator CONROY—I know they do not talk to you, but you could put out a press statement.

Talk Senator Coonan—This is argumentative crap. Stop it, Senator Conroy, and get on with something sensible.

Talk Senator CONROY—You do have the power to direct them to participate, do you not?

Talk Senator Coonan—I would not be directing Telstra to do something like that.

Talk Senator CONROY—No, I said you have the power.

Talk Senator Coonan—It is not necessary. I do not have to have Telstra participating to achieve the objective.

Talk Senator CONROY—Do you have the power to direct them?

Talk Senator Coonan—You know what is in the act.

Talk Senator CONROY—Section 9 of the Telstra act.

Talk Senator Coonan—I am not going to engage in this any further. If you want to continue to ask Telstra questions, please do.

Talk Senator CONROY—If you want to run away from issues to do with child pornography, that is fine.

Talk Senator Coonan—I do not run away from it.

Talk Senator CONROY—It will be on the public record that you are running away.

Talk Senator Coonan—Labor’s clean feed is an absolute cop-out and you know it. It is not going to achieve what the government hopes to achieve with trialling this technology. We wish to proceed in a way that we will get the very best outcome, not some half-baked one.

Talk Senator CONROY—I thought you just said a minute ago that if it worked you would act?

Talk Senator Coonan—It is being trialled.

Talk Senator CONROY—I thought you just said if it works you would act?

Talk Senator Coonan—It is being trialled.

Talk CHAIR—I think it would be a good idea to move on, Senator Conroy.

Talk Senator CONROY—Thanks for your advice as always, Chair, but I get to decide my own questions per the rules of the Senate.

Talk CHAIR—Just helpful advice.

Talk Senator Coonan—Can I just say something.

Talk Senator CONROY—Senator Ronaldson got to ask nine times the same question to Mr Mullane and Mr Jennings. I have asked three and I have to move on. You sat there on your hands and shut up while Senator Ronaldson asked the same question nine times.

Talk CHAIR—This seems to be going around in circles.

Talk Senator RONALDSON—You got an answer and I did not, so that is entirely different.

Talk Senator CONROY—No, I just got abuse and was told it was ‘crap’ by the minister.

Talk Senator RONALDSON—It was.

Talk Senator CONROY—I did not know that was parliamentary, by the way.

Talk Senator Coonan—Mr Chairman, I—

Talk Senator CONROY—Is that parliamentary?

Talk Senator LUNDY—Only when the minister says it, it seems. How about a bit more impartiality.

Talk CHAIR—It is in the Oxford Dictionary, so we should proceed.

Talk Senator CONROY—The message is ‘crap’ is parliamentary now.

Talk Senator Coonan—Mr Chairman, could I answer. What I have been advised is that one of the limitations of clean feed—and by no means are they comprehensive—is that it cannot block all forms of content. It is very doubtful that this system can scale to cover the whole range of pornography on the net. There is an inability for it to be able to analyse and block web sites based on some of the more sophisticated techniques, such as skin tones. As soon as a website has been identified and put on the list, the providers of the site simply change their host and get around it. It certainly cannot protect children from offensive material on email and it certainly provides no help for them using chat rooms. I might add to this—

Talk Senator CONROY—That is—

Talk Senator Coonan—No, since you have raised it, Senator Conroy, you just sit there and listen. And the really important issue here is that parents should not be misled that a clean feed would provide the kind of protection that they think they are getting. I have always said that I think it is very important that we do not jump to conclusions about this, that we trial it. If it works, it provides a whole different range of ways for the government to be able to do it. I want the most effective result, not just some half-baked result that gives parents some reassurance that they are not entitled to have.

Talk Senator RONALDSON—Policy on the run again.

Talk Senator LUNDY—Whose—the government’s policy?

Talk Senator RONALDSON—No, yours.

Talk Senator CONROY—Firstly, your system does not provide protection for at least two-thirds of households that do not have a filter. Secondly, I am just interested if all of those alleged shortcomings of a clean feed are covered off by your filters. Do your filters cover off on all of those issues just raised?

Talk Senator Coonan—Yes, they actually do.

Talk Senator CONROY—Cover off on all of them?

Talk Senator Coonan—They actually do.

Talk Senator CONROY—People do not change their names and get around them?

Talk Mr Mullane—They can be reconfigured as soon as there is another breach.

Talk Senator CONROY—Really!

Talk Mr Mullane—They are very effective.

Talk Senator Coonan—The most that—

Talk Senator CONROY—So people do not change their names, find ways around your filter? Parents can rest assured that, once they have your filter, that is it?

Talk Senator Coonan—They certainly have greater assurance with an experience that they can control in their own homes. It is certainly not perfect. No-one has ever claimed it has been. It is the best we have got at the moment, but that does not mean to say that we do not continue to look for a better response. That is precisely what I am trying to do.

Talk Senator CONROY—If you want the headlines ‘Telstra soft on child porn’, Mr Quilty, that is fine.

Talk Senator Coonan—I think that is a very unfair conclusion and I do not for a minute think that that is appropriate.

Talk Senator CONROY—Because, of course, you would never tell a mistruth and your reputation is really important. You have been stressing that all day.

Talk Senator RONALDSON—Chair, are the estimates allowed to be used for the Labor Party to try and push a flawed policy? Is that the way it normally works?

Talk CHAIR—As I said, I think it would be helpful to move on, Senator Conroy.

Talk Senator CONROY—It is the minister that jumped back in. I was about to—

Talk CHAIR—I do not think we really are getting anywhere and it is—

Talk Senator CONROY—I was about to move on.

Talk CHAIR—degenerating into interpersonal comments. So let us proceed.

Talk Senator CONROY—I was not the one accusing someone of crap.

Talk CHAIR—If the cap fits.

Talk Senator CONROY—Okay. Let us be clear about the partiality of the chair. That is a disgraceful comment. You did not want to bring the minister into line and now you have added to it, but I will survive.

Talk Senator RONALDSON—We have lots of stuff to get on with.

Talk Senator CONROY—You are the one sitting there pretending you are an impartial chair. Just do not bother in the future.

Talk Senator Coonan—Can we move on, please, Mr Chair.

Talk Senator RONALDSON—He is being an impartial chair. It is a reflection of—

Talk CHAIR—My interest is simply to see the—

Talk Senator CONROY—It is certainly not an impartial chairing, that is for sure. It demonstrated that.

Talk CHAIR—estimates progress, so let us proceed to the next comment.

Talk Senator Coonan—Just because I am not a fan of clean feed, Senator Conroy, does not mean that we cannot move on.

Talk Senator CONROY—You are the one that said ‘crap’ ideas. You are the one tossing around the profanities.

Talk Senator Coonan—I have given very comprehensive reasons why I think that it misleads parents as to how effective it can be, and I have also—

Talk Senator CONROY—It is no more misleading than your belief in—

Talk Senator Coonan—given an absolute assurance to parents—

Talk Senator CONROY—filters and nothing else.

Talk Senator Coonan—that the government will act, whenever we think it is appropriate, to protect children. It is something that we take very seriously.

Talk CHAIR—That is a very clear, rational statement, so let us now proceed.

***

Steve Fielding from the Religious Right Family First Party used the May 2006 Senate Estimates to question the ACMA about internet filtering.

Speakers are:
Steve Fielding - Family First Party
Helen Coonan - Liberal Party -Minister for Communications, Information Technology and the Arts
Kate Lundy - Labor Party
Steven Conroy - Labor Party
Ms Andree Wright, Executive Manager, Codes, Content and Education - Australian Communications and Media Authority
Mr Chris Chapman, Chair - Australian Communications and Media Authority
Ms Lyn Maddock, Deputy Chair - Australian Communications and Media Authority
Mr Gordon Neil, General Manager, Licensed Broadcasting

Senator FIELDING—I want to ask some questions about internet pornography. I assume that you are familiar with the Australia Institute report that said:

While violent and degrading depictions of women in particular are evident in some X-rated videos, they are widespread in Internet pornography ... Furthermore, there are three types of Internet pornography that focus on nonconsenting sexual acts—rape ... and ‘upskirts’ websites.

The question I have is this: how do you go about ensuring that children are safe from exposure to pornography on the internet?

Talk Mr Chapman—I am not familiar with the details of that report. As I said, I am coming up a steep learning curve. I think that it is fair to say that the authority is highly attuned to the safeguards role it needs to play under its remit. For a more specific answer, I might ask Andree Wright, who is our general manager responsible for that area, to say a few words.

Talk Ms Wright—As regards material on the internet covered under schedule 5 of the Broadcasting Services Act, the type of material that you have referred to, if classified, would either be illegal in any media and therefore illegal under schedule 5 or classified as X in other media. Schedule 5 allows for a circumstance where material of that nature, when it is reported to ACMA, is investigated. If the likely classification of the material is not clear to us, it is referred to the Office of Film and Literature Classification for their official view. Then, depending on that classification—say, for example, it is confirmed as a refused classification—it is a pertinent matter as to whether it is hosted in Australia or whether it is hosted overseas. About three per cent of the material currently referred to us is hosted in Australia. If it is illegal, we issue take-down notices to the relevant content host. I am pleased to say that in all instances they have been complied with. If the material is hosted overseas, it is referred to one of the filters listed as a schedule to the IIA code. A condition of being listed in that schedule is that that material must be blocked.

Talk Senator FIELDING—Just to go through that again, 97 per cent of it is from overseas?

Talk Ms Wright—Correct—that is referred to us.

Talk Senator FIELDING—I want to cover some other ground before I come back to that issue. Is it true that the 2004 report Review of the operation of schedule 5 to the Broadcasting Services Act 1992 found that some types of filtering are feasible at the ISP or server level?

Talk Ms Wright—I understand that that was the conclusion of the department’s report.

Talk Senator FIELDING—Given that this filtering is acknowledged by the government report to be feasible, why hasn’t the government introduced filtering of pornography to protect kids from inadvertent exposure to porn?

Talk Ms Wright—I can only speak from ACMA’s perspective. We implement the current policies. In the schedule of filters to the IIA codes, there are some server level filters, as I understand it, and some home based or end user filters. At the moment, under schedule 5, for individual users it is a matter of choice offered by each ISP—to take up a filter. Both types are currently on offer, as I understand it.

Talk Senator FIELDING—I am sure that you would be aware that Family First has also spoken to a number of experts in this area. We understand that filtering is entirely possible at the ISP level. Is that your understanding?

Talk Ms Wright—We understand that it is technically possible, that there is an ongoing debate about the costs associated with the supply of that service and that the current system provides a choice between end user and server level filters.

Talk Senator FIELDING—What research have you undertaken in this area?

Talk Ms Wright—We have worked with NetAlert recently. They have undertaken research into server end filtering. A member of ACMA staff was an adviser on that steering committee to inform NetAlert’s research. That is our most recent initiative.

Talk Senator FIELDING—Other research?

Talk Ms Wright—We are aware of the work that was done by DCITA and it is an area that we keep a watching brief on, both here and overseas. We are aware of trials that are run in other countries and endeavour to keep abreast of those findings. Basically this is an international area so it is important to observe what is happening internationally. As we said, currently 97 per cent of the material that is referred to us is internationally hosted.

Talk Senator FIELDING—Does the department know how much of this is a huge community concern and how significant this is? Parents grapple with keeping an eye on their kids, and the internet is used every day. A lot of kids use it for school work and whatnot at home. There is the difficulty that parents have in trying to keep an eye on their kids 24 hours a day, seven days a week when technically it is feasible for it to be filtered. In the last two years, what sort of research have you done? I am not hearing that a lot of emphasis is being put on this particular issue or a lot of priority given to it.

Talk Ms Wright—ACMA shares the concerns that the community has. It has always been the position of ACMA and its predecessor organisation that filters are an important adjunct to parents’ endeavours in this area. But we have also always emphasised that no filter is 100 per cent foolproof and that having a filter on your PC does not exempt you from continuing to be vigilant.

We are also active in the education space. In the last week we have hosted a major activity for primary schools in Western Australia to educate young people on safety on the internet, particularly to keep them safe from the material you refer to and from illegal contact. That activity had over 300 children playing, live, a scenario. Through clues that are fed out to them from an active control room and the ability to ask experts questions, they learn by doing that that it is not safe to hand out personal details and that they need to be careful about where they go on the internet. So we are active on the education front, as we are charged to be under schedule 5.

We have a watching brief on the filters. I think you would be aware, Senator, that the internet industry codes come up for review in June. The latest work on filtering is always an active consideration in the code reviews. Under the code reviews, ACMA and its predecessor organisation, the ABA, reviewed the codes with the IIA every 18 months. The types of safeguards that have been put in place include the insurance that ISPs will not make a profit from the supply of filters but must offer the filters. We are aware that there is no other country in the world that has that safeguard. It is a matter that we are constantly looking at, but through an array of measures and in conjunction with the industry, which also needs to shoulder responsibility in this area.

Talk Senator FIELDING—Given that in 2004 you acknowledged that it is technically possible, what has the department done about investigating this further? What have you been doing?

Talk Ms Wright—I am not sure if you are talking about the department of communications and the arts or whether you are talking about ACMA.

Talk Senator FIELDING—I am talking about ACMA at the moment.

Talk Ms Wright—As I said, with ACMA it is a matter we keep briefed on. The current legislation makes it equally feasible for end users to take up server or end user filtering, so we are neutral on that issue. We implement that scheme while keeping a watching brief on evolving technologies. As I said, we were most recently represented on the committee working with NetAlert, but it is a matter for NetAlert to make those findings public.

Talk Senator FIELDING—What has ACMA done to investigate filtering alternatives? You mentioned a trial being done somewhere—is that right?

Talk Ms Wright—That is the trial that was done recently in Tasmania under NetAlert; they looked into that sort of area.

Talk Senator FIELDING—And you are overseeing that?

Talk Ms Wright—We have a position on the advisory front there. As I said, we are also briefed on international initiatives that are being looked at—for example, the European Commission is looking at work in this area, and we will be attending a meeting on that in a month’s time. We then channel all that into the forthcoming IIA code review.

Talk Senator FIELDING—Is it not the case that the trial in Tasmania was triggered by a senator and not by ACMA?

Talk Ms Wright—My understanding is that there may well be another trial in Tasmania shortly, but there has been what was originally referred to as a trial in Launceston. Its genesis, I think, has been of equal interest to all parties, and I know that NetAlert, which has community and industry representation, was keen to oversee that research.

Talk Senator FIELDING—I certainly do not get any urgency at all from what I am hearing from you. This is of very serious concern to Australian families, and I feel as though this government has gone soft on this issue. I am not sitting here as a parent feeling satisfied that I am hearing any urgency at all on this issue. I am concerned that all that is happening at the moment is that senators are pushing for this and that not a lot is being done by the government in this area. This is a huge concern for families—and this is the next generation of Australian families. Children are being exposed to this stuff, and we are doing tiddly squat to nothing. Back in 2004 we had a report that clearly showed—and you have acknowledged this—that it is technically possible. Surely more should be done to protect our children. I agree that we cannot get 100 per cent of it, but when did we say that about terrorism? We cannot stop 100 per cent of terrorism, but to do nothing is ridiculous. Can you explain to me and Australian families what the heck you are doing to try to do something about this? This is a big issue.

Talk Ms Wright—When there is a new subscriber, each ISP actively offers a filter for the user’s use. This can be a server-end filter, as you were referring to, or a client based filter. We are the only country in the world where ISPs provide the offer of a filter. Every user is able to take up a filter. Under the codes of practice that ACMA have negotiated with the internet industry, every three months users are reminded that if they did not take up a filter at sign-in, they are entitled to do so. Under the codes that we have negotiated, filters must be easy to take up and update and they must block referrals from ACMA. As I said earlier, profits cannot be made from the offer of these filters. However, ACMA reiterates that this is an important measure but that it is one measure and parents cannot abdicate overall responsibility by relying on filters that, when offered, may not be perfect. The web has many, many addresses and there are constant changes. One of the things that ACMA works for internationally is to have problematic sites, especially those with illegal material and child pornography, permanently removed. Under our endeavours, we work with international hotlines and, in any given six months between all these hot lines, 70,000 or 80,000 child pornography sites would be removed from the web. As I said, we are also active on the education front. We have an international watching briefing and are working closely with the European Commission on the area of filters and illegal material.

I think ACMA’s credentials are well acknowledged internationally, as are the fruits that schedule 5 to the broadcasting act has provided Australians. It is an area where I would like to reiterate that ACMA is on the case and is very much interested in every development. As I said, the codes of practice are ready to be reviewed in the next month, and ACMA will be actively discussing these issues with the Internet Industry Association.

Talk Senator FIELDING—Can I have a copy of all the research that you have done on internet filtering for pornography? That is just a request. Can I have that?

Talk Ms Wright—Yes, I think we have constantly provided this committee with all the research that we have done.

Talk Senator FIELDING—Can I just paint a scenario here. Technically it is possible to filter at the ISP level. Currently we are not doing it at all. I understand that there is a trial somewhere looking at this issue. Can you just walk us through that trial and how it started and tell me which trial it is? I think you said there were two trials. Can you just walk me through the issue? There was a report in 2004 which said it was technically possible. Can you just walk me through what you have done with that report?

Talk Ms Wright—It is my understanding, as I have said—and I am not a technician—that there have been pilot studies in this area and that work has been done on server-end filtering and end-user filtering. As I understand it, the previous research has always balanced the technical feasibility with the costs of implementation, and it has borne in mind that there are approximately 700 ISPs in Australia, many of which are small players with small numbers of users. The imposts of offering filters would be heavy on them, and yet the possibility of them offering end-user filters—and I am not aware of research that shows that they are necessarily any less effective—is certainly more feasible for them. As I have said, as I understand it, from time to time there are pilot studies such as the one undertaken by NetAlert. There may well be a forthcoming trial in Tasmania.

These are often commercial trials where commercial factors will need to be balanced with the feasibility of end users taking them up or feeling that they fit into their lives. There is always that sort of balance between the concerns that filters, including server level filters, can underblock or overblock and concerns about the costs that ISPs will need to charge in an area where, I gather, it is a very competitive market. A lot of families going online would want to balance safeguards available, too, with the ability to simply pay the bill for that service in the first instance. As I said, if there are trials, ACMA will be interested in those. But we look at that range of factors and our role is to discuss them with the Internet Industry Association for what will be offered through ISPs to Australians.

Talk Senator Coonan—Senator Fielding, it might be of some assistance if I could give you an update about where I understand it is and what my advice is. The first point is—and I think it is critical that we make this very clear—that the government have not categorically ruled out ISP-level filters as an option. What we have said is that we want the most effective solution, and that is why there have been a number of trials.

The efficacy of ISP-level filtering has been looked at three times in the relatively recent past, and these are the reports that I am sure you will be able to have access to: in 1999, a report of the CSIRO technical trial; in 2003-04, a report produced as part of the review of the online content scheme; and, in late 2005, a report of a trial conducted by NetAlert, that involved RMIT and ACMA.

I gather that, whilst ISP-level filtering may be feasible, each report so far has found significant problems with the content filter products operating at ISP level, which included the following. They tended to over-block all forms of content. They were unable to scale to work effectively on larger ISP systems, and these systems have been shown to have problems on a smaller network in a very controlled environment. Perhaps more worryingly, they were unable to analyse and block websites based on more sophisticated techniques such as skin tones. Many provided no protection for children using chat rooms, which, I am sure you would agree, it is absolutely critical to address. Some could not filter content sent via instant messaging, peer-to-peer services and email—also, obviously, a very prolific source of concern. Many did not allow the ability to customise filtering levels to suit different ages or family values, so that a 17-year-old would basically have the same filtering as a seven-year-old. And they certainly could not log children’s activity to allow for parental monitoring.

Given those concerns, we are obviously interested to continue to trial ISP filtering, because the technology gets better all the time and we acknowledge that. I have certainly not ruled it out. I am taking a very active and close interest in what we can do better. I want the most effective solution. It is certainly not a matter of money—money could always be found if you had the most effective solution. At the moment, we believe, from the information given to us—and I take a very close interest in this—that the closer the filter is located to the end-user, the greater the content that it can effectively block.

The clean feed system has been raised. As I said yesterday, I think some serious concerns have been raised about that—for instance, in the UK, about its effectiveness, as it only blocks casual browsing, on my understanding, and it is certainly not effective in stopping peer-to-peer traffic—and Usenet, which is often used to distribute this material, particularly with paedophile rings. Once again, we think that PC based filtering, until we can get better technology and a better resolution around this, is the most effective way of dealing with things like protecting children using chat rooms and filtering content.

I think that technology can be daunting for parents and I am looking very actively at programs that can assist parents to better install and renew this technology. We will continue to look at this trial and, whilst I am not in a position today to say precisely what, I have under very active consideration measures to improve the uptake of filtering technology, which is currently taken up by only 35 per cent of families.

I am looking very actively at strengthening the regulation requiring ISPs to provide filters to customers and to much more actively promote them to new customers and their existing customer base. I am looking very critically at stronger sanctions than the current codes of practice, and I think we can also look at significantly bolstering NetAlert and continuing our inquiries into ISP-level filtering.

My inclination about all this is that we need to watch this trial very closely. I thought it might be of some assistance to impart to you the government’s existing and ongoing concern and very active interest in doing the very best that can be done in this area.

Talk Senator FIELDING—You have mentioned the trial again. I think you said there were two trials—there has already been one done and there is one being done?

Talk Senator Coonan—Yes, there were three.

Talk Senator FIELDING—You are referring to the one being done at the moment?

Talk Senator Coonan—Yes.

Talk Senator FIELDING—Could someone just walk me through exactly what that trial entails?

Talk Senator Coonan—Yes.

Talk Ms Maddock—It is a commercial trial. We have not been involved.

Talk Senator FIELDING—Are there any resources looking at it from your department—you said you are overseeing NetAlert?

Talk Ms Maddock—It is a commercial trial. We have not been involved. I understood—I am getting a look that says, ‘No’—that the department had been looking at it. We have not been involved. It is a commercial trial.

Talk Senator FIELDING—I am just sensing that we are saying, ‘This trial is important,’ but you are not even looking at it.

Talk Ms Wright—It has not commenced yet. When it does commence, I would expect we would be briefed on it and take an interest. But my understanding, as Ms Maddock has said, is that it is a commercial trial that will be set up by commercial companies. It is not active yet. When it is, I am sure we would be briefed.

Talk Senator FIELDING—Why would you be relying on it if you are not active in it? It just seems strange to me that here is an important issue—the minister quite rightly has referred to it as an important trial—and you just seem to be waiting for information on it. In 2004 there was a report, which you are fully aware of, Review of the operation of schedule 5 to the Broadcasting Services Act 1992. You would know it well. It said that it was feasible, and you have acknowledged it is technically feasible, to filter at the highest level. Can I go a bit further and explain. Yes, there are hundreds of internet service providers, but there is a handful at the tier 1 level—the very top level—that are actually the gatekeepers of what comes in from overseas and what goes out—not locally. You have acknowledged that 97 per cent of this stuff that is harming our kids is coming through those gatekeepers. There are a handful of them. In 2004 a report clearly said that it was technically possible. I think we have done tiddly squat to nothing to actively pursue this with urgency. Even today, we are relying on another trial that you are not even involved in.

Talk Ms Wright—No. To reiterate the position that I stated: we understand that the trial has not commenced yet, it will run for several months and we will be briefed on it at that time and take an interest in what is happening. It is being set up by a commercial company, as we understand it, for commercial purposes.

Talk Ms Williams—Senator, the department knows a little bit about what has been happening. Gordon Neil can tell you a little bit more about the various trials.

Talk Mr G Neil—The company that proposed the trial in Tasmania has spoken to us and advised us that it had made arrangements with an equipment supplier. It was confident that, with its own software and the associated company’s software and with the cooperation of the equipment supplier, it had the basic requirements to undertake a trial and that it was in the process of talking to internet service providers and to associated telecommunications companies. They spoke to us about four weeks ago. We have not had further communication from them. They have not requested any support from us at this stage. We are happy to talk to them.

Talk Senator FIELDING—So quite clearly you are aware and watching. But what actively is being done? The report from 2004 said that it was technically possible? Parents are crying out for help in this area. Quite clearly, PC based solutions are not working. Have you tried to put the software on your PC yourself?

Talk Mr G Neil—The report said that it was technically feasible. The advice of Ovum was that if you prescribe the circumstances and you limit what you ask the filter to do, in certain circumstances it was technically feasible. However, the report concluded that it was not advisable, because the performance of the filter was not adequate—that it was a basic blacklist filter and that blacklist filters are highly limited in their performance. So the report concluded that, while it was technically feasible, it was not a desirable option.

Talk Senator FIELDING—This is where the argument is just unbelievable. It is technically possible at the PC level. A PC is just a smaller mainframe. If it is technically possible at the PC level, it is technically possible at the actual ISP level. We have had advice—and I have passed this on to the minister—that it is technically possible. We need action—active trials. This is taxpayers’ money. I can only say that this is a huge concern. I am not sensing urgency at the table on this issue—not at all. Watching, looking and doing this or that are not enough. This is a real concern. This is our next generation. Our kids need protecting.

Talk Mr G Neil—Can I just say that the conclusion of that report was that the best filters are PC based filters. The most sophisticated technology and the best level of protection are offered at the PC level. At that level, it is a single user entering the internet. Once you scale up, you have to start to reduce the capability of the filter in order for it not to impair the system.

Talk Senator FIELDING—There is a company today—a commercial company—that is filtering at equivalent to the ISP level in New South Wales schools. We have referred that on. It can be done. You are talking about a handful—like Telstra and Optus. These are the gatekeepers. For us to sit back and say that open slather is okay is ridiculous. It can be done. I am asking what trials the department is actively doing on this. Rather than just relying on other people and other commercial interests, what are we actually doing to test it? Rather than saying, ‘It can’t be done,’ we should be saying, ‘How can we do it?’ We should not be saying, ‘How can we shoot it down?’ We should be saying, ‘How can we do it?’ It is technically possible. Reports have shown that. We need to find a practical way of doing it. I agree that we are not going to stop 100 per cent of it. I agree with that. But if we get 70 or 80 per cent, it is better than nothing. When it came to securing the safety of Australian families from terrorism, no-one questioned the cost or that we could not get 100 per cent of it. When it comes to the cost of securing the safety of our children’s minds, we should not question the cost and we should not question that we cannot get 100 per cent of it. We should be doing more in this area. I am actively asking: what are you going to be doing in the next year in active trials in this area rather than waiting for other people to do it?

Talk Ms Wright—Our focus is in the coming code review. It is open for the company that you have referred to to be on the list of approved filters offered by ISPs in Australia, if they are not already. If they have not done so already, they would need to apply to IIA. Then their product goes through independent assessment, it is listed in the schedule to the code of practice, and then that becomes one of the products that can be offered, and no doubt will be offered, by some ISPs. At the moment, I reiterate that I think there are 20 listed filters on the IIA code schedule. Some are server based, as you refer to; some are end user based. The code, as I have said, is up for review in the next month. These issues will be actively on the table and they will be informed by the research and the trials that are being undertaken.

Talk Mr G Neil—Could I add—

Talk Senator FIELDING—Could I make another comment, and then I will let you go forward from there. Yesterday Senator Conroy picked up an issue on the internet with Telstra—half owned by Australians. It is still half owned by Australian taxpayers. Yet they are not even involved in the trial. We have just gone soft on this issue. We have gone missing in action.

Talk Senator LUNDY—He is trying to steal your line, Senator Conroy!

Talk Mr G Neil—I wanted to add that the NetAlert report was concluded earlier this year. In terms of what we are doing, we have just received a report from NetAlert and we are interested in this proposed new trial. But we are still in the same year.

Talk Senator FIELDING—Thank you. I am certainly not the minister, but I would ask for more to be done. More needs to be done in this area. This is a real concern. This is our next generation of kids and we are just saying that open slather is okay. We are saying, ‘Fend for yourselves. Do the best you can.’ I am not happy.

Talk Senator Coonan—Senator Fielding, that is a very unfair comment, if I may say so—totally unwarranted. You just heard me say that we want the most effective solution. That is precisely what we are working towards. This is not a government that is prepared to tolerate. If there is a better solution, we will definitely have it. I do think that it is very important that we do not just try to grab a solution and say, ‘That’s it.’ We need to be sure that it works. As you know, we are working very closely with your office. I think my office has tried to get an appointment two or three times to continue to agitate these matters with you. We will continue to do that. It is appropriate that we do so.

Talk Senator CONROY—You have not tried to make an appointment with me.

Talk Senator Coonan—You do not have much to contribute.

Talk Senator CONROY—I am hurt!

Talk Senator Coonan—But Senator Fielding does, so we will continue to deal with these matters.

Talk Senator CONROY—I just have one question on this topic.

Talk CHAIR—Hang on. I think that covers the ground, Senator Fielding. We will now go to Senator Conroy.

Talk Senator CONROY—I just want to follow up on this topic, on a specific issue that has been raised by Senator Fielding. I hope you have a good meeting with Senator Coonan, Senator Fielding. Enjoy! The trial promoter wants the CSIRO to analyse the results of the Tasmanian trial, Minister. Will you try to facilitate this?

Talk Senator Coonan—I will facilitate anything that properly allows this trial to continue. If I have any information that it can be better facilitated, I will take some steps to ensure that that happens. If it needs to be evaluated after it has been completed, I will facilitate that.

Talk Senator CONROY—Thank you.

***

Internet TV is the next area that the government is going to have to try and regulate. We can't have hardcore porn channels going into Australian homes. Steven Conroy tried to get an answer form the Australian Communications and Media Authority about how they intend to go about controlling the internet. He also continued on about internet filtering.

Speakers are:
Steven Conroy - Labor Party
Helen Coonan - Liberal Party -Minister for Communications, Information Technology and the Arts
Michael Ronaldson - Liberal Party
Kay Patterson - Liberal Party

Mr Marcus Bezzi, General Manager, Legal Services - Australian Communications and Media Authority
Ms Lyn Maddock, Deputy Chair - Australian Communications and Media Authority
Mr Giles Tanner, General Manager, Inputs to Industry - Australian Communications and Media Authority
Mr Gordon Neil, General Manager, Licensed Broadcasting
Dr Simon Pelling, Acting Chief General Manager, Broadcasting

Parliament of Australia
ENVIRONMENT, COMMUNICATIONS, INFORMATION TECHNOLOGY AND THE ARTS LEGISLATION COMMITTEE: Australian Communications and Media Authority: Discussion
Date: 23 May, 2006 
Committee name: ENVIRONMENT, COMMUNICATIONS, INFORMATION TECHNOLOGY AND THE ARTS LEGISLATION COMMITTEE
Department: Department of Communications, Information Technology and the Arts Program Australian Communications and Media Authority
Page: 4 
Proof: Yes

Talk Senator CONROY— Thanks very much. I have a number of questions about IPTV regulation in Australia. ACMA has regulatory responsibility for ensuring compliance with broadcasting licences in Australia. Is that correct?

Talk Mr Bezzi—Yes.

Talk Senator CONROY—What is the definition of a broadcasting service that would require a broadcasting licence under the Broadcasting Services Act?

Talk Mr Bezzi—Perhaps Giles Tanner can take that. I do not have a copy of the act with me at the moment.

Talk Mr Tanner—Unfortunately I do not have a copy of the act, but there is a definition of ‘broadcasting’ in section 6 of the Broadcasting Services Act. It is basically a service that transmits radio or television programs from points to multipoints in real time. There are some exclusions, such as a dial-up service. There is also the ministerial power to direct that certain categories of service are exempt from that definition. There is one such ministerial direction which exempts nearly all internet services from that definition, regardless of the other characteristics. Whether or not that service would then need to be licensed depends on the definitions in part 2 of the Broadcasting Services Act, which actually sorts that broad set of broadcasting services into narrowcasters, broadcasters, subscription, free-to-air, commercial, community et cetera, and the rest of the act determines whether or not a particular specific licence is required for those services. Some of the least influential services only require a class licence.

Talk Mr Bezzi—The particular determination that clarifies in relation to the internet—and perhaps that is the direction you were heading—

Talk Senator CONROY—An exemption was provided through ministerial determination for services delivered through the internet—Mr Tanner himself was identifying it. This is my next question, just to help you. The term ‘the internet’ was not defined in the determination, was it?

Talk Mr Bezzi—No, it was not.

Talk Senator CONROY—What is ACMA’s view of the interpretation of this word?

Talk Mr Bezzi—I am not sure that ACMA has a settled view on the interpretation of the word. The word is defined in a number of places.

Talk Senator CONROY—How are you administering the determination, then, if you do not know what it means?

Talk Mr Bezzi—When you say that we do not know what it means, I am not sure that that is what I said.

Talk Senator CONROY—You said that you do not have a settled view; therefore you do not have a definition. Therefore it is currently undefined. That is a logical thing.

Talk Mr Bezzi—When I say that we do not have a settled view, we have not had a circumstance that has arisen that has required us to determine in a formal way what the phrase means. We certainly have informal views about what the phrase means, and there are—

Talk Senator CONROY—You are administering the law.

Talk Mr Bezzi—We are administering the law, but the process of administration of the law does not require—

Talk Senator CONROY—So you do not have to have a view until someone asks? I am asking.

Talk Mr Bezzi—Certainly we have an understanding of what the internet is, and we understand that there are many definitions of the internet available. In any of the circumstances that we have looked at in an informal sense, the definition that we have had has enabled us to form an informal view in relation to the particular circumstances that we have looked at from time to time, that I am aware of.

Talk Senator CONROY—How can the industry have any certainty at all whether they will need a broadcasting licence for internet services if you cannot tell them?

Talk Mr Bezzi—I am not suggesting that we cannot tell them. I am not aware that we have been asked.

Talk Senator CONROY—You cannot tell me, and I have just asked you. I want to know what your definition of the internet is for the purposes of this determination. I would like some clarity.

Talk Mr Bezzi—Perhaps that could be taken on notice.

Talk Ms Maddock—There is no evidence that there is any problem. If there were, we would sharpen our thinking on what is and is not out of the question. We routinely get asked opinions—I think they are section 21 opinions, but I am not sure of the section of the act—as to whether things are broadcasting or narrowcasting. We give those opinions. We gave one recently for a particular service. We give those on particular cases that come to us rather than in the abstract.

Talk Mr Bezzi—Perhaps I should clarify—

Talk Senator CONROY—It sounds like you make it up as you go.

Talk Ms Maddock—No, we rely upon past views and we rely upon our reading of the act. But any of these things can only be accurately answered in the actual context at the time.

Talk Senator CONROY—Let me give you a context. Would a network based on IP protocols but not publicly available to open access constitute the internet?

Talk Ms Maddock—I am not in a position to give a view on that off the cuff. If somebody were to come to us with a proposition that that is the sort of service that they were thinking of doing, we would engage in interaction with them to find out what it was they were providing, the context et cetera. Feel free to start a service, Senator, and come to us with a question.

Talk Senator CONROY—I am not sure if you had to sit through the whole of the Telstra debacle yesterday.

Talk Ms Maddock—No, I did not.

Talk Senator CONROY—I am glad to hear that. There seems to be a difference between Telstra and the government on the issue. The minister has said that IPTV services would require a broadcasting act licence. Telstra stated yesterday that it believes that television delivered over a network using IP protocols but not publicly available would not require a licence. This is absolutely straightforward. The problem is that this is about things that are happening today, which leaves me shocked that you are saying that you can only deal with things in the abstract.

Talk Mr Bezzi—If a service that makes available television or radio programs uses the internet—and I think Telstra are suggesting that their service does use the internet—then it is exempt from the definition. It may also be exempt for some other reasons but it would be exempt on that basis.

Talk Senator CONROY—The minister’s view is that the determination does not exempt services delivered providing point-to-multipoint video over private IP networks.

Talk Mr Bezzi—That is correct.

Talk Senator CONROY—That is the minister’s view.

Talk Mr Bezzi—That is another basis on which the service would be exempt from the definition of a broadcasting service.

Talk Senator CONROY—But we come back to: what is your definition of ‘the internet’? You just made a point to me a second ago and you used the word ‘internet’. That is the nub of this issue.

Talk Mr Bezzi—I did. There are a number of working definitions. I am not in a position to explain to you what a formal, settled view would be if an opinion was given under the opinion giving power that ACMA has.

Talk Senator CONROY—So anyone who claims to use the internet can avoid the need for a licence by saying they use the internet.

Talk Mr Bezzi—That is what the minister’s determination says.

Talk Mr Tanner—I might make a point about the scope of section 21, which is the power to give opinions about category of service. I am not aware that section 21 is a power to give opinions on whether or not a service is a broadcasting service, assuming a thing is a broadcasting service. To determine with certainty for the person seeking the opinion as to what category that service belongs to, which then enables them to decide with confidence what kind of licence they need to get or whether they need a licence at all, the issue of whether or not a thing was a broadcasting service could be properly ruled on by ACMA, for example, in the context of an investigation. A complaint that the person was providing an unlicensed broadcasting service, for example, would require ACMA to rule on whether or not the service was actually a broadcasting service as part of that process. I wanted to clarify that before section 21 gets dragged too much further into this.

Talk Senator CONROY—But surely there is an objective definition of ‘the internet’. It is not just a subjective call. I find it extraordinary that you have not considered this already.

Talk Mr Tanner—I do not think Marcus was in any way suggesting that we have not considered it. I think his point was simply that we have not had reason for this issue to come before this authority for a ruling on which we could then say, ‘Yes, ACMA has looked at this.’ But ACMA the organisation, the executive ACMA, is very mindful of this issue and has ideas and views on what constitutes an internet service. In fact, the construction of that direction is one of the matters that we keep front of mind when we are considering the status of things we see going on in the wider economy.

Talk Senator CONROY—But the minister has expressed a view about the operation of the act. You did not consider whether this was correct or not?

Talk Mr Tanner—I have not had the opportunity to consider what the minister might or might not have said about the operation of the act.

Talk Mr Bezzi—I have no difference of opinion—I am speaking on my behalf, not on behalf of ACMA

Talk Senator CONROY—Not on behalf of ACMA?

Talk Mr Bezzi—As ACMA’s general manager, legal, I am saying that I am aware of the minister’s view and I do not have any difference of view with the view that was expressed.

Talk Senator CONROY—Are private IP networks part of the internet?

Talk Mr Bezzi—It will depend on the particular circumstances of those networks.

Talk Senator CONROY—Have you contacted Telstra yet about their activities, given that you believe—

Talk Mr Bezzi—I have not contacted Telstra.

Talk Senator CONROY—Why not? Aren’t you in charge of administering the law? Clearly, on your definition, Telstra are breaking the law. They do not have a licence to do what they are doing.

Talk Mr Bezzi—That is not my understanding of the position.

Talk Senator CONROY—They are not breaking the law?

Talk Mr Bezzi—I do not understand them to be breaking the law.

Talk Senator CONROY—Why not?

Talk Mr Bezzi—I understand that the scope of what they do, and this is without any formal process of investigation—

Talk Senator CONROY—Why haven’t you investigated it?

Talk Senator Coonan—Let him finish his answer, Senator.

Talk Mr Bezzi—The issue has not arisen for ACMA’s determination. Issues usually arise for ACMA’s consideration if there are complaints. I am not aware that there have been any complaints about Telstra’s service. The informal analysis of what Telstra has been doing has not raised any alarm bells with me or with my colleagues, as far as I am aware.

Talk Mr Tanner—I should perhaps make clear that this has been a subject of internal discussion. We have considered the publicly available facts about this service and we have certainly had informal discussions with the legal team.

Talk Senator CONROY—You have not discussed it with Telstra.

Talk Mr Tanner—There is a threshold issue here. You speak to a person when you become concerned that there is a breach. We have not become concerned that there is a breach here, and no-one has brought a complaint before us that would require us to publicly investigate. This is an issue which we have monitored. I think Marcus is giving you a flavour of the kinds of internal work on the construction of the law that staff have done. This is not the same as an ACMA view, but we have not had cause to put this before the full ACMA.

Talk Senator CONROY—So ACMA is entirely reactive?

Talk Mr Tanner—I do not think we are saying that at all. I think we are saying the opposite of that.

Talk Senator CONROY—I do not agree. I think it is exactly what was said. I think Mr Bezzi made the point, ‘We only act if we receive a complaint.’ By definition, that is an entirely reactive position.

Talk Mr Tanner—I do not think that is what he said.

Talk Senator CONROY—As long as no-one complains, we do not do anything.

Talk Mr Bezzi—No, if people complained, we would do something.

Talk Senator CONROY—I would hope so.

Talk Mr Bezzi—If we had concern about an issue, staff would consider whether to take action and perhaps raise it with the full authority for them to further consider.

Talk Senator CONROY—So you at no stage have had any discussions with Telstra whatsoever.

Talk Mr Bezzi—I have not had any.

Talk Senator CONROY—Your section. You are in charge of the section.

Talk Mr Bezzi—The legal area.

Talk Senator CONROY—So when I say ‘you’, please take it I am meaning ACMA. I am not trying to personalise it; it is just a shorthand way of saying it.

Talk Mr Bezzi—I understand that. I am not aware of any discussions.

Talk Mr Chapman—That is my understanding.

Talk Senator CONROY—Are there any other IPTV type service providers that you are aware of, have had any complaints about or noticed?

Talk Mr Bezzi—I am aware that there are many IPTV services provided on the internet. I am not aware that we have received any complaints.

Talk Senator CONROY—Have you examined whether or not they need a licence?

Talk Mr Tanner—One of our legacy regulators, the ABA, actually commissioned a fairly significant report on streamed broadcasting like services on the internet. So, yes, it is an issue which we have been taking an interest in for years.

Talk Senator CONROY—How long ago was that?

Talk Mr Tanner—It was about three years ago, I think.

Talk Senator CONROY—So it was before the minister gave her view on what the internet was.

Talk Mr Tanner—I cannot recall what the sequence was.

Talk Senator CONROY—It was three years ago. The minister has only been there for 18 months to two years, and she only made the recent announcement—

Talk Mr Tanner—No, it was a different minister. The direction was made by Senator Alston.

Talk Senator CONROY—But the definition of it has been enunciated very recently by the minister. Your report predates that because it is three years old.

Talk Mr Tanner—To be fair, the words of the direction really are quite plain. It simply uses the word ‘internet’. It is for us—

Talk Senator CONROY—But the definition of the word ‘internet’ is not plain. I am asking for a firm—

Talk Mr Tanner—No, it is not, and law often makes use of terms which are broad and have to be given a meaning, and it is our role to do that.

Talk Senator CONROY—I am asking you to give it a meaning and at this stage you are saying you do not have a settled view on the meaning of the word ‘internet’. I am asking for a settled view. I do not think I am asking for anything outrageous. I think there is a whole industry out there that is going to hang on your definition of the word ‘internet’.

Talk Mr Tanner—I think we need to consider on notice what kind of advice we can give you as an authority on the construction of that term, given our roles under law.

Talk Senator CONROY—How can you possibly prosecute the law if you do not know? I appreciate that the word ‘prosecute’—

Talk Senator RONALDSON—Chair, I think Mr Tanner said he was going to take it on notice.

Talk Mr Tanner—I think that you are attempting to argue the opposite of what actually is the case. I think it should be plain from what Mr Bezzi and I said that in fact the issue of the regulatory status of the particular service provided by Telstra is something we have taken notice of and have been considering internally.

Talk Senator CONROY—How did they pass a test that you have not set? You do not have a settled view of the word. How did they pass?

Talk Mr Tanner—We have to consider what we think the meaning of that word might be. That is the job that those of us that are lawyers do.

Talk Senator CONROY—I am asking you to enunciate to the parliament, the Senate of Australia—

Talk Mr Tanner—How we answer that to a member of a Senate committee is an issue we will take on notice.

Talk Senator CONROY—What do you mean ‘how you answer it’? You answer it truthfully.

Talk Mr Tanner—Of course we will.

Talk CHAIR—Senator Conroy, they have said they will take it on notice. I draw your attention to the time.

Talk Senator CONROY—I am happy to break at this moment for morning tea.

Talk CHAIR—I believe there is a references committee meeting being held at this time.

Talk Senator CONROY—I am happy to have a break. Then we can regroup and see if we can get some clarity. That is all I am after.

Proceedings suspended from 10.45 am to 11.09 am

Talk CHAIR—We will resume with questions from Senator Conroy.

Talk Senator CONROY—Have we found a definition of the ‘internet’ during the break?

Talk Mr Bezzi—We are very happy to take that issue on notice. We can probably provide you with several definitions that we have regard to if called upon to reach a settled view about what the meaning of the phrase is.

Talk Senator CONROY—How have you reached a settled view that Telstra are not in breach or do not need a licence—

Talk Senator RONALDSON—Are you taking it on notice or not?

Talk Ms Maddock—Can I just—

Talk Senator CONROY—You have moved chairs, Ms Maddock. Reinforcements!

Talk Ms Maddock—I like to keep Hansard guessing as to where I am sitting! Our primary interest in this aspect is in broadcasting regulation. It is becoming increasingly difficult, as you are flagging, to define broadcasting. We are interested in this in ensuring that we regulate broadcasting as far as we possibly can in that complex and evolving world. With regard to the Telstra proposal, there was and there is little indication to us that it is broadcasting unlicensed, so we chose not to escalate it.

Talk Senator CONROY—How have you reached a settled view on that if you do not have a settled view on the definition?

Talk Ms Maddock—We have a view on what is licensed or unlicensed broadcasting, but it is complex and evolving, as you are flagging. The law is changing, so, rather than pre-empting the discussion by expressing settled views on what the internet or broadcasting is, we are going to await the minister’s media package to see what the process of thinking as reflected in legislation becomes.

Talk Senator CONROY—I am asking you to give me an interpretation of existing legislation.

Talk Mr Bezzi—We have taken that on notice.

Talk Senator CONROY—It is not good enough. You have an existing law right now; it is not like there is nothing there. No-one is quite sure when the minister’s media legislation will come into being. It could be the end of the year; it could be early next year; it might be tomorrow. So you cannot let the industry hang because you are waiting for new legislation. Your job is to administer the existing legislation.

Talk Mr Tanner—I think you have raised two issues—

Talk Senator CONROY—Mr Tanner, you have moved as well. Did you need that much protection, Mr Bezzi? They have you surrounded!

Talk Mr Bezzi—They have.

Talk Mr Tanner—I am sitting within shin-kicking distance of Mr Bezzi! I think it is my shin he has to kick, though. Having considered the line of questioning before the break, there are two issues in it for us. One is that I hope we have reassured you to some extent that, rather than doing nothing about the status of Telstra’s IP service—in fact, this is an issue that the executive adverted to—we formed a view in consultation with legal that we had no evidence before us which reached the threshold that would cause us to propose to the authority that it should initiate investigation into an unlicensed broadcasting service. Of course, if we had received a complaint, we would then have to look at that, but we saw no reason to take further investigative steps, and that was a considered decision by the executive. I was involved in that; Mr Bezzi was involved in that.

On the issue of how we apply that very short definition, which uses the term ‘internet’ to exempt a set of services, the internet is something which grows and evolves, just as broadcasting does, over time with new business models and new technologies. It has already grown and evolved a bit since that direction was given. We have a range of interpretive material we take account of in applying the law to a particular set of facts. I think we have taken on notice that we will give you a sense of what that range of interpretive material looks like, and I hope that will give you some comfort that there is a legal regime in place.

Talk Senator CONROY—That would be good. I would appreciate knowing that there is a legal regime in place. I would like to get your thinking on a couple of the existing services. I have mentioned Telstra but I want to talk about some of the specifics. For instance, Telstra is currently providing IPTV services to its BigPond customers. I understand that Telstra has broadcast V8 supercar races and AFL video services to BigPond customers on a point-to-multipoint basis. I also understand that similar streaming video services were provided to Telstra mobile phone customers during the Rugby World Cup. Did Telstra obtain a broadcasting licence to deliver these services? Obviously, the answer is no. Has ACMA looked at the specific services that were being provided? We have mentioned Telstra before. I would like know your thinking behind why the V8 supercar races, the AFL video service, the Rugby World Cup and I think the Commonwealth Games—

Talk Mr Tanner—It was in fact the Commonwealth Games when we really focused in on this issue.

Talk Senator CONROY—I would like to know what your thinking was behind those four issues, as to why they did not require a licence, as well as your more generic thinking about what constitutes—

Talk Mr Tanner—Senator, are you suggesting there was anything different in the technical means by which it was distributed? We understood that the Commonwealth Games was real-time, so it had the look of a point to multipoint service.

Talk Senator CONROY—When you say it had the look—

Talk Mr Tanner—I am just not sure whether the four different events you have named raise four different issues or whether they just raise the same issue.

Talk Senator CONROY—They may have been delivered slightly differently. I don’t know that they were all delivered in exactly the same way. I think there are different issues involved for the four of them, because I think they were delivered slightly differently in each case. I may be wrong.

Talk Mr Tanner—We will take that on notice, Senator.

Talk Senator CONROY—So we would like to know if you looked at them and on what basis those four services passed your ‘no licence needed’ test, and then the more generic thinking behind this; that would be good as well.

Talk Mr Tanner—Yes, understood.

Talk Senator CONROY—The explanatory memorandum for this determination provides that the determination exempts a service that ‘uses the internet, even if part of the means of delivery of the service is technology which may not clearly be part of the internet’. Again, there is a subjective issue there, so I would like to know what your thinking is—

Talk Ms Maddock—We will provide you with the source of information that we take into account.

Talk Senator CONROY—I would like to know what your interpretation of that is, particularly being ‘part of the internet’. You might say, ‘My phone is not connected directly, whereas my computer clearly is connected directly.’ I would like to know your thinking on that. The explanatory memorandum also provides:

... the determination will cover services that enable users to access material from the Internet using a wireless application protocol device such as a mobile phone, whether or not the wireless application protocol is itself part of the Internet.

How does the explicit inclusion of WAP devices in the explanatory memorandum square with the view that private IP networks fall outside the definition of the internet? The explanatory memorandum for this ministerial determination provided that the purpose of the determination was to ‘make it clear that audio and video streaming over the Internet are not broadcasting services’. Is that correct?

Talk Mr Tanner—That is what it says.

Talk Senator CONROY—So if there is not a consensus over the meaning of ‘the internet’ in the telecommunications sector, has this determination made it clear what the Broadcasting Act applies to? Has ACMA considered issuing guidelines to inform the telco sector of its view of the application of this law? Those are my questions; I am happy for you to take them on notice and come back with a considered view.

***

Talk Senator CONROY—I wanted to come to an issue we did talk about a little earlier with ACMA, and that is IPTV regulation. In the minister’s recent discussion paper on media reforms she indicated that IPTV services would require a broadcasting services licence under the Broadcasting Services Act. I think we established that earlier today, basically. What is the definition of a ‘broadcasting service’? I wanted to get your views on this. That would require a licence?

Talk Dr Pelling—As ACMA said to you, the definition of ‘broadcasting services’ is set down in the Broadcasting Services Act. It is broadly described as a service which delivers television or radio programs to persons having equipment capable of receiving those programs, but it does not include three categories of service, which is specifically defined as being outside, and one is services that provide no more than text or data, from memory. The second is services provided on demand on a point-to-point basis, including a dial-up service. The third category is services that are deemed by the ministerial instrument not to be broadcasting services.

Talk Senator CONROY—An exemption was provided through ministerial determination for services delivered using the internet?

Talk Dr Pelling—Yes, that is right.

Talk Senator CONROY—As you are aware, we had a bit of a discussion this morning. Is it correct that ‘internet’ was not defined in the determination?

Talk Dr Pelling—That is correct, yes.

Talk Senator CONROY—What is the department’s view of the interpretation of the word?

Talk Dr Pelling—When the instrument was passed, I think the view was that, given the fact that the internet was a dynamic entity, if you can call it that, and was growing, changing and evolving, it would be very difficult to have a definition which spanned more than a few months if we were to be too precise with the definition of the ‘internet’. We deliberately, I think, left the scope of the definition broad.

Talk Senator CONROY—So you left it vague?

Talk Dr Pelling—I think, fundamentally, we just used the word the ‘internet’, which provides a commonly used term to define those sorts of services.

Talk Senator CONROY—So there is no interpretation of the word ‘internet?’

Talk Dr Pelling—As far as I am aware, there is no interpretation in any legislation and there certainly is not with regard to that determination.

Talk Senator CONROY—You have probably heard these questions, but just to refresh your memory I will go through them again with you. The explanatory memorandum for this determination provides that the determination exempts service that use the internet, even if part of the means of delivery of the service is technology that may not clearly be part of the internet. What is the department’s interpretation of the meaning of that phrase?

Talk Dr Pelling—I think that was designed to make sure that we covered off the situation, as was common in those days, where the internet was done by dial-up. If you like, there might have been a legal uncertainty as to whether the connection that you made between your modem and the switch in the exchange was technically part of the internet or whether the internet was the thing that was behind the switch. Basically, it was ensured that, when you covered the range, or the scope, of that technology, it fell within the determination. The other part, which was the mobile definition, I think, was the same.

Talk Senator CONROY—It was a ‘service which enables users to access material from the internet using a wireless application protocol’.

Talk Dr Pelling—It referred specifically to WAP, because that was the technology of the day. Clearly, that is no longer terribly widely used, although I am not sure.

Talk Senator CONROY—Just take me through that part about the WAP again.

Talk Dr Pelling—The wireless application protocol was, in those days, the technology being used from mobile systems to access the internet. I am not sure how widespread it is used anymore, as opposed to being replaced by 3G, but it was just an example that was given.

Talk Senator CONROY—That has explained it perfectly. Has the department ever provided guidance on its changing views on the meaning of the internet to either ACMA or the minister?

Talk Dr Pelling—We have certainly had discussions on this with ACMA and indeed the ABA.

Talk Senator CONROY—Could you have some more discussions with ACMA quickly?

Talk Dr Pelling—We engage with ACMA on these sorts of issues quite regularly.

Talk Senator CONROY—I do not think that you do it enough. You have had conversations in briefing the government and ACMA about your views on the changing nature of the internet?

Talk Dr Pelling—That is correct.

Talk Senator CONROY—What is the department’s view of whether a network based on IP protocols, but not publicly available to open access, would constitute the ‘internet’?

Talk Dr Pelling—I have seen a range of legal advice on the scope of these sorts of definitions. There are two key issues to emphasise here. One is the policy intent behind the decision, which I think the minister made clear in one of her speeches recently. That is, the government at the time, and I believe it is still the case, wanted to make sure that those sorts of ordinary streamed internet services are not regulated as broadcasting services. As I said, I think that policy intention still applies. The other point I would make is that, at the end of the day, the actual regulation of the services, as was discussed this morning, is a matter for the regulator.

Talk Senator CONROY—The problem is that we always come back to what is the definition of ‘internet’, in all of these circumstances.

Talk Dr Pelling—That is correct. I have seen advice. There are differing advices on what the scope of the internet is. I am not a lawyer, but I am not aware that matters have ever been tested in a court to give any definitive definition of what it actually means. But I think it is important to come back to the intent behind the policy, which is about ensuring that these services are, as far as possible, not regulated.

Talk Senator CONROY—So if you can access something using a modem, is that the internet?

Talk Dr Pelling—I do not know if it is going to be terribly valuable to go through technology by technology.

Talk Senator CONROY—What is the internet?

Talk Dr Pelling—There are differing views that one can take. For example, one could take the view that anything which involves the TCP/IP protocol is the internet, or one can take the view that services available on public networks as opposed to private networks are the internet. I am not aware that there is a settled view on these things. Of course, the distinction between those sorts of things is probably going to have a number of areas of grey in it. Those are likely to increase over time as the internet involves.

Talk Senator CONROY—Yes, I think that is right. It is valuable to me to have this discussion with you about the different possible technologies. I think you are right; there are grey areas, and increasing grey areas. Normally you hope that technology helps you reduce your grey areas, but in this particular case, I think, technology is increasing the number of grey areas. That must make it pretty hard to have a firm view.

Talk Dr Pelling—It is a matter for the regulator, I think, at the end of the day, but I think it is still possible to take a particular service and examine it in the context of the current decisions and regulatory framework and reach a decision about what that service is.

Talk Senator CONROY—This issue is going to become more important because of the minister’s media reforms. Will the department be issuing any guidance on its view of the internet in conjunction with the government’s proposed media reforms? You seem to have quite a well thought through understanding of the differing points. Given ACMA did not seem to be quite as well thought through as you, I was wondering whether you are going to issue anything.

Talk Dr Pelling—The department’s role in this is to advise the minister. That is what we will be doing.

Talk Senator CONROY—You would not be putting anything out separately? You would just advise the minister?

Talk Dr Pelling—That is not something we would normally do.

Talk Senator CONROY—Thanks for that. That was particularly useful. Is the department aware of any other countries around the world that regulate IPTV in the way envisaged by the minister?

Talk Senator Coonan—Hong Kong.

Talk Dr Pelling—Hong Kong certainly has IPTV services, and I believe they are regulated as pay TV services. I am not across the regulatory regimes of other countries so as to be able to say anything.

Talk Senator CONROY—Is that what you are seeking to achieve? Is that the policy?

Talk Senator Coonan—No, not necessarily. I think the current law can be described in such a way as to put into one category general internet and into another category what might be more like broadcasting services with special equipment, including closed circuit, and those not generally available. However, it is fair to say that I think these definitions will ultimately be fluid ones, as you quite rightly point out, as the distinctions become more blurred. As part of the media package, we will clearly be looking at getting some greater clarity around this. One can dance on the head of a pin and it will not necessarily give you the right answer. Going forward, it is our clear objective to regulate as little as possible anything that is a general internet stream or service. The rationale behind wanting to think about licensing was really to make sure that consumers had—and I think consumers would want this—a level of confidence and comfort in the government having at least some kind of potential ability to supervise if somebody wanted to set up, for instance, a pornography television channel or a terrorist training television channel. They are the sorts of issues that I am sure everyone in this room would understand are not desirable outcomes. Within that as a sort of broad, high-level policy objective, you would have to come to grips with all of these very difficult technical things. We are well aware of the fact that as we develop this there may need to be some adjustments, and we are aware of the issues.

Talk Senator CONROY—Could you take on notice whether there are any other countries around the world that regulate IPTV in the way envisaged? The minister mentioned Hong Kong. Could you just take on notice any others?

Talk Dr Pelling—Yes.

Talk Senator Coonan—By the way, when I say ‘Hong Kong’, I am not necessarily saying that is what we should be doing. I am simply saying that is an example.

Talk Senator CONROY—You have made that clear. Given that we are moving into new media areas in Australia, some are arguing that they are being choked off at present. In fact, the chairman of an Australian company with some of the largest new media interests noted yesterday that Australia’s lack of broadband infrastructure is constraining the growth of new media in Australia. it is reported that James Packer of PBL said:

Broadband penetration is a key driver of this growth," Mr Packer told a ninemsn digital market summit.

"But Australia's position in this area is embarrassing.

"We need faster broadband to stay competitive with the rest of the world."

Minister, you have presided over Australia’s current broadband position. Are you embarrassed by it?

Talk Senator Coonan—Embarrassed by what—James Packer?

Talk Senator CONROY—No, by Australia’s current broadband position.