If it were up to Gillard and Conroy they would introduce Internet filter legislation today. But the reality of the new political paradigm is that the Labor Party’s legislative agenda will now be set by the Greens until the next federal election.

The Gillard government is not going to want to go to the polls early on the back of a double dissolution - because they know that they will lose office and likely be in opposition for at least two terms - so they will ideally only introduce legislation that they know , or think they know, the Greens will back. To do otherwise - and introduce legislation that is going to be defeated would only make Labor seem even more defeated than they currently are.

The question is: Is Internet censorship a big-ticket item that Labor either really believes in and must legislate on in this parliament (there is no compelling evidence that Gillard or Conroy really believe in it) or that if Labor do introduce the legislation there is political capital in it - will it help persuade voters in urban cities, mainly the marginal seats in Sydney, Melbourne,and parts of Brisbane, to vote for the Labor Party at the next election.

Is Internet censorship legislation an issue that will deliver Labor votes and if it is then what will they give the Green’s to get it through the Senate? Should Gillard and Conroy introduce the much talked about Internet censorship bill, the Greens would have to oppose it in the Senate. If they didn't it would be like the Meg Lee’s Democrats all over again.

The political motivations of the Gillard government to introduce Internet censorship haven’t changed. It remains determined to act as a moral compass for Australian families in order to get some much-needed mum and dad votes from the suburbs. Gillard and Conroy frame this political pragmatism in the mantra that laws are designed to suit the needs of the majority (0). Similarly the libertarian objections of the Greens to Internet censorship have not changed. Freedom of communication remains a core ideal of the Greens.

Should the Gillard government go a little mad (and there is some evidence of a little panic going on in Sydney and Canberra) and introduce its long awaited Internet filter bill, what arguments might sway the Green’s to support the bill?

Are current censorship laws enough?
Currently, the Australian Communications and Media Authority (ACMA) is empowered to investigate media issues under the Broadcasting Services Act (1992). It responds to what is seen as offensive and illegal material online by administering a national regulatory scheme that includes the investigation of complaints about prohibited online content. Prohibited content since 2000 (under Section 5 of the 1992 Broadcasting Services Act) refers to “refused classification” material such as child sexual abuse imagery; detailed instruction in crime; non-violent sexually explicit material (X18+); and material unsuitable for person under 18 (R18+). Since 2008 the Gillard government (106)has proposed to extend regulation of the Internet by ACMA by introducing filters. In December 2009 the government announced it would proceed with plans to censor the Internet after Government-commissioned trials found filtering a blacklist of banned sites was possible. As at 30 April 2009, there were 977 URLs on the ACMA blacklist.

Australia already has detailed censorship laws such as the classifications which control what is seen on public television. These classifications could be expanded to other forms of media. The Internet is like a television - it broadcasts images and text that audiences watch or don't watch. However the problem with Internet censorship is that it is not the ‘Australian internet’ it is global, a point returned to shortly.

For now it is reasonable to argue that rather than censorship by filtering certain websites, the government could use the National Classification Code (2005) as it does now to warn viewers. There does however remain a difference between censorship and banning. Under the National Classification Code adults are already refused access to films and videos which: depict, express or otherwise deal with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should not be classified; or depict in a way that is likely to cause offence to a reasonable adult a minor who is, or who appears to be, under 16 (whether or not engaged in sexual activity); or promote, incite or instruct in matters of crime or violence.

Material generally agreed to be potentially harmful to children (0)on films and videos, or in magazines, should be regarded in the same way on the Internet. The Internet's power and (potential) pervasiveness make it crucial to immediately begin trying to develop an effective and usable system for extending classification to it. But classification is not, and should not be, confused with censorship: censorship in this case being the use of filters to deny adults’ access to the Internet.

Is the Internet a free speech issue?
Australian law recognises that the maintenance of social cohesion and public order necessitates limits on freedom of speech where it may lead to a breach of the peace and a range of civil and criminal laws are directed at racial hatred. For example, the Anti-Discrimination Act (NSW 1977) and the Racial Hatred Act (Cth 1995) include the offences of racial vilification. International legal instruments also accept that the right to freedom of speech is limited.

It is the issue of freedom of communication that is of concern to the Greens and its libertarian position. In terms of violation of freedoms of communication, Australian law hasn’t a strong legal framework. While freedom of communication on matters of government and politics is contained in Sections 7 and 24 of the Constitution, it was not until 1992 that the High Court of Australia formally recognised that the Constitution protected freedom of communication. The decisions in Nationwide News Pty Ltd v Wills (45) and Australian Capital Television Pty Ltd v Commonwealth (41) both found that the Constitution contained only an implied freedom of communication.

Legal argument in opposition to Internet content regulation is established in freedom of speech and communication jurisprudence. These arguments are more likely to stiffen the Greens’ resolve to deny Gillard and Conroy any pragmatic censorship bill. The Greens however might be swayed to consider extensions of the National Classification Code if it accepts – as most jurisprudence does – that the right to freedom of communication is not absolute.

The 'right to know (0)', requiring access to knowledge and information and incorporating the idea of freedom of information, is a modern political development. The political ideal of free speech and the idea of freedom to express inquiry and identity, as John Stuart Mill first conceived it, are tied to freedom of thought and opinion. Individuals need to be free to test their ideas of identity, without being held accountable to the state. Increasingly (at least in the West) citizens are taking this idea and using this to defend the right of people to freely access information based on the idea that the more freely information flows, the stronger societies become (5).

Free speech is not an absolute value however and current national laws and international conventions have functioned to regulate adult behavior. In Australia, there are laws dealing with defamation, blasphemy, copyright, obscenity, incitement, use of insulting words, official secrecy, contempt of court and of parliament, sedition and consumer protection that place limits on speech. These laws recognise that there are countervailing interests that must take precedence over freedom of speech in some circumstances.

Debates about Internet censorship are problematic: there are moral and value judgments about what is appropriate content, who gets to decide what is normative, and the role of parliament in introducing forms of censorship when freedom of communication is an implied right of the Constitution. The other significant issue that may block any Internet censorship bill in the current parliament is: does it work?

How do you censor the Internet?
Apart from the political, moral and legal issues of government censorship of the Internet, the technological issues associated with trying to censor the Internet are large, complex and ultimately expensive. The Internet distributes information hence should it be treated as a piece of technology or because it provides interactive text and image (0), should content be the subject of censorship?

Content censorship may work with a book published in Sydney. But the Internet poses considerable challenges for the effective regulation of the reproduction and dissemination of material in digital form, considering that: information distribution can be anonymous; there is an ability to hide information through encryption; and there are jurisdictional difficulties in either enforcing controls or applying punitive measures.

There is an inconsistency of cross-border regulation of the Internet even among national partners like European Union states. There are also difficulties in establishing effective co-operation of authorities across national borders, and the labour-intensive cost of attempting the technological difficulties (or impossibilities) of regulating Internet content. To pursue Internet censorship, even if it technologically possible across states who may or may not share national interests will mean it is likely to be a very expensive proposition with little chance of success. Recent accounts of hacking (23)at the IMF, Sony, and the U.S. defense contractor Lockheed Martin show that determined web users will find ways to subvert national efforts.

As has been said, there is no such thing as ‘an Australian internet’– the World Wide Web is not a misnomer. Labor’s best legislative attempts to regulate internet content will continue to be frustrated by jurisdictional issues, unlimited costs and well skilled hackers and hacktivists. Never mind, they will also be frustrated by the Greens.

In February (2011) Senator Conroy was asked to comment on the Egyptian government cutting Internet access ostensibly to hinder pro-democracy. The Minister assured the journalist that such a thing could never happen in Australia: "…Australia's a vibrant democracy, where the government doesn't control the internet..." A year earlier, in February (2010) Conroy had to back peddle after telling ABC radio listeners “you can't regulate the internet”.

While Labor may still aspire to regulating the internet they will be limited by the need to negotiate with the Greens and may therefore need to find new ways of helping the community avoid inappropriate content. Or wait until there is a change to the senate but that won't be until 2013.