I’m merely submitting that ACMA has the power to do so, if it wanted to exercise it. ACMA can act under these clauses so long as it’s satisfied that the code is deficient. It doesn’t have to convince anyone else of that deficiency (you cannot appeal the decision on its merits).

Of course, ACMA would still have to consult with the industry and give them a chance to fix the code. And any standard that it did set would be a disallowable instrument, which I would hope would be promptly disallowed.

And it is important, as you say, that the power is that of ACMA, and not of the Minister. Senator Conroy wouldn’t be able to force ACMA’s hand under the current legislation to require mandatory filtering. (Courts disagree to an extent on the effect of legislation that provides for ministerial directions, but any direction in this case would be non-binding, I would think.)

The Minister’s influence under 70 and 71 is quite limited. He can give ACMA a written direction to exercise its powers under those clauses, but (a) ACMA is an independent statutory body, and he has no control over HOW they exercise their powers; and (b) all their powers under those clauses use terms like “if” and “may”, meaning that ACMA’s first step in “exercising their powers” is always to decide whether or not they’re going to do anything (i.e., they could satisfy the Minister’s written direction by saying, for example, “We exercised our powers under clause 70 by determining that the registered industry code is not deficient.”

You’ll also note that their power in relation to industry standards requires extensive consultation with the industry segment under regulation, which has plenty of chances to rectify a “partially deficient” situation by amending their code. One would expect minimalist implementations of Govt policy to result from that process, rather than the wide, sweeping vistas of content control that the Government has been advocating.

… and even then, the result is a disallowable instrument which the Parliament can disqualify. Hardly likely to deliver “Labor’s Plan for Cyber Safety.”

So there are enough question marks over the development of standards and codes that it’s very unlikely that Conroy will get what he wants if he tries to force the process. If he learns to “Play Nicely With Others” he might have a chance of getting something cooperative and voluntary in place. But if he carries on as if he’s actually in charge of anything here, he won’t find much in the way of satisfaction any time before the next election.

– mark

These clauses respectively relate to situations where the registered industry code is deficient in relation to all of the matters that it deals with or in relation to only some of the matters that it deals with.

Deficiency is defined broadly: if ‘the code is not operating to provide appropriate community safeguards’ or ‘the code is not otherwise operating to regulate adequately [ISPs]’ it is deficient.

If there is a deficiency that isn’t remedied after ACMA gives notice, ACMA can make an industry standard that remedies the deficiency. The industry standard that ACMA makes is a disallowable instrument (industry codes are not disallowable instruments).

One can certainly see how ACMA could make an argument that opt-in filtering for certain classes of material does not ‘provide appropriate community safeguards’, especially if the Minister set policy to the effect that mandatory filtering of that material was necessary to provide such safeguards.

In fact, the Minister’s influence is even greater. Under both cl 70 and cl 71, the Minister may give ACMA a written direction as to the exercise of its power to replace the industry code with its own industry standard.

(I’ve never heard anyone suggest using this method to implement mandatory filtering, though.)

So regardless of how angry the Minister gets, the IIA is entirely within their rights to wipe his spittle off their faces afterwards and say, “Screw you.”

ACMA (not the Minister) can determine that an Industry Code is deficient and require the industry to modify it, but having approved of PC censorware for a decade they’re hardly likely to come out and say, “Actually, we’ve been completely incompetent for ten years by saying that’s ok. It isn’t ok anymore, you need to filter ur internetz.”

And even if they did, the Codes are disallowable instruments, which means either house of Parliament can vote them down within 14 sitting days of the Minister tabling them.

I think the Coalition did a fascinating job of tying the hands of the Communications Minister in this space. There really isn’t a lot he can do to force an outcome here, other than pass new legislation.