This page is located at
http://www.caudit.edu.au/codes/LegalMatls.html
© Committee of Australian University Directors of I.T., 1996, 1997
CAUDIT licences the use of this document by any party, but not for profit, provided that the document is copied in its entirety, including this copyright notice
This document offers a range of sources relevant to the law of content. The purpose is to assist CAUDIT members in preparing their own Codes, and assessing particular instances. This page does not constitute advice, and its use is a preliminary to discussions with a legal adviser, not a substitute for them.
It comprises the following sections:
Universities are subject to the common law and statute law, of:
Most universities are likely to be subject to only a single State or Territory jurisdiction, but some (e.g. the Australian Catholic University) may be subject to several.
Provided that it is the subject of one or more heads of the Commonwealth's constitutional powers, Commonwealth legislation generally dominates any State legislation that may conflict with it. Commonwealth legislation always dominates Territory legislation.
In relation to the criminal law, the Commonwealth has no clear head of constitutional power, and hence Commonwealth legislation states that the common law remains in force, e.g. s.4 of the Crimes Act 1914 (Cth), at http://www.austlii.edu.au/au/legis/cth/consol_act/ca191482/s4.html.
Although there is broad similarity among the Crimes Acts of the States and Territories and the Commonwealth, there are significant differences. In addition, case law has given rise to different precedents in different jurisdictions.
In general, universities are also subject to specific governing statutes enacted by a State or the Commonwealth. These statutes differ considerably, particularly on matters of detail.
This section provides pointers to a number of laws that are of general relevance.
In all jurisdictions, legislation has been enacted which codifies the criminal law:
A complex of Commonwealth statutes relating to telecommunications contain provisions that are of possible relevance. These include:
Only the Commonwealth has to date enacted legislation that directly regulates privacy:
The Commonwealth protects official secrets through the Crimes Act 1914, Section 79, at http://www.austlii.edu.au/au/legis/cth/consol_act/ca191482/s79.html.
In addition to the common law and statute law, a range of contractual conditions apply to all or at least some universities, including:
Censorship law in Australia is not straightforward. This is mainly because it is primarily a State matter and each State passes its own legislation with limited reference to that of other States; and because actions by the legislatures suggest there are differences in social values among the States and Territories.
A degree of commonality has been achieved, however, by virtue of co-operation between the Commonwealth and the States during the early 1990s. This has resulted in a Commonwealth-enacted and -funded framework, and an agreement among the States that they would amend their legislation to use the Commonwealth framework and to largely parallel one another. This has resulted in new enactments in most States and Territories during the mid-1990s.
These laws, however, are expressed in relation to particular kinds of conventional media, specifically films, games and [printed] publications. They are neither generally expressed, nor do they refer directly to the Internet. Hence it is far from clear how these laws should be, or will be, applied to the Internet.
Put very briefly, censorship in Australia is primarily concerned with:
Materials of this nature are 'Refused Classification' (RC). Materials that are judged to fall close to the boundary are given a 'Restricted Classification' . The acts of judgement on these matters are performed by the Commonwealth Office of Film and Literature Classification (OFLC).
Under Commonwealth law, it is an offence to import into Australia; and under laws of each State and Territory, it is an offence to possess for the purpose of sale or hire, the following classes of materials:
In addition, to the above, in the case of 'child pornography', it is in at least some States and Territories an offence even to possess materials.
Background to the Australian censorship regime, including references to the law, is available at:
Each university (or cooperative of universities within each State and Territory) needs to analyse the effects of local legislation. This is because the legislative provisions vary considerably between the States, because precedents exist in some States, and because law enforcement agencies and the courts appear likely to make different interpretations of the laws.
Legal sources that have been located as part of the CAUDIT project to create a Code of Practice, are as follows:
Various statutes of the States and Territories single out child pornography for special attention, creating an additional criminal offence for mere possession of Refused Classification material that involves children. An example of the definition (from the A.C.T. statute) is "possession of a film, photograph, drawing, audio tape, video tape or any other thing depicting or otherwise representing a young person engaged in, or in the presence of another person engaged in, an act of a sexual nature, being a depiction or representation that would offend a reasonable adult person".
The sources located during the CAUDIT project are:
It appears that the existing laws would apply to materials possessed, sold or hired (and possibly even imported) using the Internet, where the resulting materials were expressed in hard-copy form, or stored in a disk-file.
It is unclear, however, whether the acts of 'importing' materials over the Internet, viewing materials on a screen, and/or storing materials in non-persistent memory, would be an offence.
Unfortunately, it appears that the legal concept of 'possession' of offending materials may not require any express intent or consciousness on the part of the person concerned. Hence accidental possession, and even possession as a result of a process of investigation and reporting of material to authorities, may also be offences.
Moreover, in at least one instance, a police force is actually prosecuting a case of this nature (the Australian Federal Police - which provides a local police force under contract to the A.C.T. government - has launched a case against Mark Lambert, although, even after multiple hearings, it had yet to present any evidence).
This situation may even extend to caches, both on client workstations and on all layers of cache elsewhere. Hence, technically, every cache-operator in the country is possibly in breach. This very silly situation will doubtlessly be dealt with sensibly by the courts; but not before some person who is acting entirely reasonably suffers the unjustified time, effort and cost of defending a test-case, and possibly only after appealing the case to a higher court.
It does not appear that offering offending materials for sale via the Internet is actually in breach, nor that transmission or storage of such an offer would be in breach of the censorship laws.
This section presents a brief analysis of the interaction between relevant laws of N.S.W. and of the Commonwealth. The relevant legislation is the Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW), and the Classification (Publications, Films and Computer Games) Act 1995 (Cth).
In section 24 of the N.S.W. Act, it is established as an offence to sell, deliver or show to minors "submittable publications" or publications classified RC.
The key terms are defined in section 5 of the Commonwealth Act. The term "publication" means "any written or pictorial matter", but does not include a "film", "computer game", or an "advertisement". The term "submittable publication" means "an unclassified publication that, having regard to the Code and the classification guidelines to the extent that they relate to publications, contains depictions or descriptions of sexual matters, drugs, nudity or violence that are likely to cause offence to a reasonable adult to the extent that the publication should not be sold as an unrestricted publication". The various classifications are set out in section 7 of the Commonwealth Act.
In section 25 of the N.S.W. Act, the further offence is created of leaving a refused, restricted or submittable publication in a "public place", or displaying it such that it is visible from a "public place". Under section 4 of the NSW Act, "public place" means "any place which the public is entitled to use or which is open to, or used by the public, whether on payment of money or otherwise".
It is unclear whether the courts would interpret the creation of world-wide web pages, and/or the operation of a server that makes such pages available to a requestor, as fitting within these various definitions.
A number of further criminal laws may be relevant to censorship, including the offences of aiding and abetting, being an accessory, aiding suicide, incitement, and attempting to pervert the course of justice.
It is stressed that these laws are generally applicable to every natural and legal person; and that they are seldom used except in instances of intentional or culpable behaviour. Possible applications to Internet services are suggested.
'Aiding and abetting' refers to conduct that encourages, or renders more likely, the commission of a crime. Fan E-mail about a page with unlawful content such as necrophilia or pornography might constitute aiding and abetting by the sender.
At Commonwealth level, this is dealt with by the Crimes Act 1914, section 5, at http://www.austlii.edu.au/au/legis/cth/consol_act/ca191482/s5.html.
Examples of State and Territory laws are:
If a person knows that a felony has been committed, and "receives, relieves, comforts or assists the felon" (e.g. hinders the felon's apprehension, trial or punishment), then he is 'an accessory after the fact'. Assistance to a felon includes a failure to act, e.g. by not reporting the offence. If an ISP was aware that a web-page that was running on its site contained Refused Classification material, and failed to report it to the police, then it might be held to be an accessory after the fact.
At Commonwealth level, this is dealt with by the Crimes Act 1914, section 6, at http://www.austlii.edu.au/au/legis/cth/consol_act/ca191482/s6.html.
Examples of State and Territory laws are:
Incitement refers to exhortation to commit a crime. It may be addressed to one or more individuals or to the world in general. An email message or a web-page that urges violent action against a racial or religious group might be held to be incitement by the author.
At Commonwealth level, this is dealt with by the Crimes Act 1914, section 7A, at http://www.austlii.edu.au/au/legis/cth/consol_act/ca191482/s7a.html.
A special form of incitement relates to the overthrow of the Constitution, any government of "any other civilized country or organised government", or the destruction of property of the Commonwealth or of property used in trade or commerce used with other countries or among the states. It is dealt with by the Crimes Act 1914, section 30C, at http://www.austlii.edu.au/au/legis/cth/consol_act/ca191482/s30c.html.
At Commonwealth level, this is dealt with by the Crimes Act 1914, section 43, at http://www.austlii.edu.au/au/legis/cth/consol_act/ca191482/s43.html.
At Commonwealth level, the destruction of evidence is dealt with by the Crimes Act 1914, section 39, at http://www.austlii.edu.au/au/legis/cth/consol_act/ca191482/s39.html.
Under various laws of the Commonwealth, and of the States and Territories, law enforcement agencies may have the power to enter premises, conduct searches, and/or seize electronic equipment.
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Created: 26 October 1996, Last Amended: 3 April 1997