Published on 3 March 2012.

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SW: I’m Sabina Wynn, Executive Director of the Australian Law Reform Commission, and I’m here with Professor Terry Flew who is the Commissioner in Charge of the ALRC’s inquiry into the National Classification Scheme. The ALRC has just completed its Final Report which has 57 recommendations for reform. So, Terry, one of the key features of the new model is platform neutral regulation. What does that actually mean?

TF: It means, Sabina, bringing together the range of laws into a single set of legislation that means that content is dealt with in a similar way across media platforms. At the moment what you have is a very fragmented scheme. An example that was given of that is content such as Harry Potter and the Goblet of Fire can be currently subject to five or six different classification schemes and its around the idea that a single classification framework that is, as you say, platform neutral, provides consumers with greater certainty of what they can expect from media content as it migrates across media platforms between their television, their computer, their ipad and other devices.

SW: There’s also going to be a clearer scope of what must be classified. Can you tell us a bit more about that?

TF: Well we want to focus the classification scheme on content that has a significant Australian audience, that is available on a commercial basis – I’m thinking there about feature films, television programs – we want to clarify the scope of classification as it relates to computer games. So the ALRC does propose that there be an R18 category for computer games, and that the focus of regulation is on recognising that which is adult content and on measures to restrict access to adult content to ensure that all content providers across platforms take reasonable steps to restrict access to that content in order to safeguard the interests of children and promote cyber safety.

SW: At the moment, the scheme that we have is a cooperative scheme shared between the states and the Commonwealth government, but in the scheme we’re proposing this might change?

TF: Yes. As we have developments like a National Broadband Network and as more and more content is being accessed in the home, through high-speed internet, personal computers and so on, it no longer, in our view, makes sense to continue to try and differentiate what’s available on a state by state basis, so we are proposing a national scheme that would continue to have an important role for the states and territories in terms of classification enforcement, but where the laws and guidelines themselves would come under Commonwealth law.

SW: And a bigger role for industry in operating classification?

TF: That’s true. One of the findings from the submissions is that the Australian public are less concerned with the question of who classifies than around the quality and independence of the classification decisions. And given the volume of content that’s available and the rapid change that’s happening in a converging media environment, we believe there is merit in a greater role for co-regulatory arrangements and industry classification of content, as has been the case in an industry like television for about 20 years, subject to effective regulatory oversight and, as I said earlier, appropriate restrictions on adult content.

SW: And in terms of classification markings themselves, what is the ALRC’s response to that?

TF: At this juncture the ALRC has not recommended a change to the existing classification categories. There was some discussion about that in our earlier Discussion Paper, but we’ve recognised that there is a need to get a better understanding of what community standards actually are in relation to expectations about media content. So we are recommending that there be ongoing research undertaken in that area. We also see an important role for the Classification Board as a benchmarker of overall standards, and that role becomes increasingly important as there is a greater role for industry in classification codes.

SW: And alongside the Board is a single regulator?

TF: Yes. As well as the fragmentation between the Commonwealth and the states, there’s also a degree of fragmentation in terms of what government agencies are involved with this area. So we envisage bringing together some of the powers currently associated with the Attorney-General’s Department, associated with the Australian Communication and Media Authority and other agencies in a single regulator that would work with the Classification Board and with industry bodies in providing a more harmonised national classification scheme.

SW: This Inquiry has received such a large number of submissions and a huge response from the community. It’s probably been the biggest community engagement exercise for the ALRC, certainly in recent years. Why do you think there was so much interest out there in the community about this Review?

TF:  Well, a large number of submissions came from the gamer community who had been long concerned about the absence of an r18 classification, and it would be the ALRC’s view that the recommendations proposed here move that discussion along.

There is also some real polarity of opinions here between those who emphasise freedom of speech and the rights of adults to consume the media of their choice and see that as being even stronger in an age of the internet, and those who have concerns about community standards, protection of children and other such issues. So the ALRC has put together eight guiding principles for reform that draw together some of the existing elements of the classification code about the right of Australians to read, hear, see and participate in the media of their choice, balanced by questions of community standards and protection of children, but also to propose that any future classification regulatory framework needs to be sufficiently responsive to technological change and adaptive to new technologies, platforms and services, that it shouldn’t disadvantage Australian media content providers in what is an increasingly global media environment, and that classification itself should be kept to a minimum that is needed to achieve a clear public purpose.

SW: So … a hard task, but if all the recommendations are implemented eventually, what do you think the key effects will be?

TF: It’s the ALRC’s view that applying consistent rules to content and moving towards a more content based system rather than a platform based system provides the sort of flexibility and adaptiveness needed to have a framework that remains relevant for the next 10-20 years and which balances the competing obligations that are associated with media classification, be they community standards, freedom of communication, development of Australia’s digital content industries, or reducing the regulatory burden on those industries while ensuring that regulation itself operates in a more effective way in the interests of the community.

SW: And I guess it also provides a classification system for all Australians, no matter the state or territory in which they live.

TF: Yes. I think the days of being able to talk about a South Australian internet have well and truly passed, so we would see it, just as trade and commerce powers operate on a national basis, that classification should also be operating on a national framework. And also recognising that Australia’s classification guidelines will connect up with international developments. So, in areas of prohibited content in particular, we envisage a continuation of the important role of government agencies in working closely with international agencies such as Interpol around that content which should be prohibited outright.

SW: In this environment, is it actually possible to protect children?

TF: The approach that the ALRC has taken in this Report is to look at measures that empower parents, such as the greater use of parental locks for television, PC based filtering, cyber safety education, but also to put obligations on restricting access to adult content, recognising that many of the critical thresholds exist there. But we recognise that there are important roles to be played here by parents, by schools, by teachers, and that it’s not possible for the government to cover each and every contingency and we also recognise that responsible industry providers themselves have an interest in providing good consumer information to parents.

SW: And with all the content that’s now being uploaded onto the internet, people putting videos and other things onto YouTube or Facebook, and people writing blogs, will they also have to be mindful of this new scheme and have to classify those sorts of content?

TF: Generally no. Any content that is not adult content will not be under obligations to be classified, if it’s not commercial and not intended for a significant Australian audience. Were it to be adult content, yes, there can be obligations to take reasonable steps to restrict access, but we recognise that they will differ between non-commercial and commercial providers. In terms of prohibited content, the same obligations would exist whoever is involved. But that’s recognising the nature of the law. But in terms of promoting the freedom to communicate, we see the role of classification generally as being to step back from excessive regulation of individual’s rights to communicate online.

SW: And so in terms of a new Scheme, there’s going to be a lot of education required.

TF: Yes. And we think that this will be a very important role for the regulator in any future framework.

SW: Thanks Terry.

The ALRC’s report is now available to view or download from the ALRC website, and there are hard copies available to purchase.