Monday, 19 November 2007

Censorship in a National Emergency

New Australian legislation has recently been passed to implement the government response to the national emergency in Aboriginal communities of the Northern Territory. This is the Northern Territory National Emergency Response Act 2007 (Act No.129). The Act deals with sale of alcohol and a wide range of other matters which have been extensively publicised.

The legislation applies to certain communities in the Northern Territory, and sections 26-30 apply to publicly-funded computers. We understand these to include all computers which have been paid for by local, territory or Commonwealth governments; there is no definition of what is meant by "computer." The legislation would certainly apply to computers in government libraries and schools. What obligations exist for the "responsible person for a publicly funded computer"? This is what must be done.
  • A filter must be installed, maintained and updated on the computer. This must be a filter accredited by the Minister, and there are 19 such filters accredited (s 26).
  • Records of use must be kept, including a record of each person who uses the computer, and the date and times on which it was used, to be retained for three years. This record keeping, according to the explanatory memorandum, "is designed to provide for the audit of computers to ensure illegal material accessed by the computer is identified." (s 27)
  • The responsible person must develop an acceptable use policy relating to the kinds of use of the computer that are acceptable, and this policy must include matters specified by the Minister, if she chooses to do so. The Act specifies a number of things which the acceptable use policy must include (s 28).
  • The publicly funded computers must be audited on 31 May and 30 November each year. The nature of an audit is not clear, and the term is not defined in the Act, but it appears to include information on users and and their times and dates of use of the computer. Given that the Minister may determine the form of the audit, it seems likely that what is required in the content of an audit is yet to be determined. For example, it is possible that the audit may include an entire record of use over six months, or a sample, or something else, depending on the Minister's determination (s 29)
  • If these things are not done, the responsible person is liable, and there is a fine of either 5 or 10 penalty units (currently $550 or $1100). Several of the offences are strict liability offences, which are criminal offences which do not require a fault element (especially knowledge or intent) to be proven (s 30).
These sections of the Act came into effect on 18 August 2007. The new legislation introduces a new dimension to online content regulation, a very worrying dimension. Does it represent a new agenda on the part of government?


Andrew said...

Hi Derek,

I'm very glad that you'd brought this up. This is an issue that has
become a growing concern up here in the NT, but many professionals are ignorant of. It was brought up recently at the last ALIA gathering during Sue Hutley's visit.

Personally, I feel strongly that, as professionals, there are a strong set of principles on which our profession is grounded. So, when legislation is introduced which legally requires us to breach somebody's privacy and free access to information, what option do we have?

What exactly are our professional principles worth, if they're not even considered when implementing policy that affects the library industry?

Derek Whitehead said...

Hi Andrew

I wondered what practical impact this has had in NT libraries? The legislation came into effect in August. We need to work out a course of action on this one, and my question about whether it represents a wider agenda is a serious one.

Andrew said...

Well it hasn't seemed to have affected public libraries in the towns and cities - it's only in relation to certain "targeted" communities. Still, like many other aspects of the "emergency intervention", there's a lot of speculation, and really not much communication.

And when Senator Coonan makes such statements as "Due to the abject failure of the majority of state and territory governments to fund filtering programs within their library network, the Australian Government will step-in and work closely with the Australian Library and Information Association (ALIA) to install library filters and obtain associated on-going support." (on the Netalert site, one cannot get the feeling that there is definitely more to come.

Out of curiosity (and I didn't want to ask the "What are ALIA doing about it?" question, because the action needs to be much wider than that), but how "closely" exactly does the government work with ALIA in consulting them over these issues - especially when proposed policy starts to impinge upon civil liberties?

Derek Whitehead said...

Hi Andrew
ALIA policy does not support the use of filters in public libraries, so that what the Minister has in mind would be inappropriate. We are involved in talking to government but this clearly has limits: as far as I know, no-one consulted libraries about the new online content regime in the Territory. More later on this.