5. The New National Classification Scheme

Recommendation 5–1 A new National Classification Scheme should be enacted regulating the classification of media content.

Recommendation 5–2 The National Classification Scheme should be based on a new Act, the Classification of Media Content Act. The Act should provide, among other things, for:

(a) what types of media content may or must be classified;

(b) who should classify different types of media content;

(c) a single set of statutory classification categories and criteria applicable to all media content;

(d) access restrictions on adult content;

(e) the development and operation of industry classification codes; and

(f) the enforcement of the National Classification Scheme, including through criminal, civil and administrative penalties for breach of classification laws.

Recommendation 5–3 The Classification of Media Content Act should provide for the establishment of a single agency (‘the Regulator’) responsible for the regulation of media content under the National Classification Scheme.

Recommendation 5–4 The Classification of Media Content Act should provide that obligations to classify or restrict access to content apply to persons or organisations who sell, screen, provide online, or otherwise distribute content to the public (‘content providers’).

Recommendation 5–5 The Classification of Media Content Act should provide that a ‘content provider’ includes non-commercial and commercial content providers. However, obligations to classify or restrict access to content would not generally apply to persons uploading content online other than on a commercial basis.

Recommendation 5–6 The Classification of Media Content Act should provide that a ‘content provider’ includes online content providers and content platforms that control how online content is uploaded, generated or displayed; but excludes other internet intermediaries, including application service providers, host providers and internet access providers.

Recommendation 5–7 The Classification of Media Content Act should provide that obligations in relation to Prohibited content apply to content providers and internet intermediaries, including application service providers, host providers and internet access providers.

Recommendation 5–8 The Classification of Media Content Act should provide content providers and internet intermediaries—including application service providers, host providers and internet access providers—with protection from civil proceedings in respect of anything done in compliance with the Act or industry codes approved by the Regulator.

Recommendation 5–9 The Classification of Media Content Act should provide that obligations to classify or restrict access to online content apply to any content with an appropriate Australian link. This may include content:

(a) hosted in Australia;

(b) controlled by an Australian content provider; or

(c) directed to an Australian audience.

6. Films, Television Programs and Computer Games

Recommendation 6–1 The Classification of Media Content Act should provide that feature films and television programs that are:

(a) likely to have a significant Australian audience, and

(b) made and distributed on a commercial basis,

should be classified before content providers sell, screen, provide online, or otherwise distribute them to the Australian public. The Act should provide for platform-neutral definitions of ‘feature film’ and ‘television program’ and illustrative examples. Examples of television programs may include situation comedies, documentaries, children’s programs, drama and factual content.

Recommendation 6–2 The Classification of Media Content Act should provide that computer games that are:

(a) likely to be classified MA 15+ or higher; and

(b) likely to have a significant Australian audience; and

(c) made and distributed on a commercial basis,

should be classified before content providers sell, screen, provide online, or otherwise distribute them to the Australian public.

The Act should provide for platform-neutral definitions of ‘computer game’ and illustrative examples.

Recommendation 6–3 The Classification of Media Content Act should provide a definition of ‘exempt content’ that captures all media content that is exempt from the laws relating to what must be classified. The definition of exempt content should capture the traditional exemptions, such as for news and current affairs programs. The definition should also provide that films and computer games shown at film festivals, art galleries and other cultural institutions are exempt. Providers of this content should not be exempt from obligations to take reasonable steps to restrict access to adult content.

Recommendation 6–4 The Classification of Media Content Act should enable the Regulator to approve industry codes that provide for the voluntary classification and marking of content that is not required to be classified. The Regulator should encourage the development of such codes for:

(a) computer games likely to be classified below MA 15+;

(b) magazines likely to be classified R 18+ or X 18+; and

(c) music with a strong impact.

Recommendation 6–5 The Classification of Media Content Act should enable the Regulator to issue a ‘classify notice’ to a content provider who provides unclassified content that the Act mandates must be classified. Such notices may relate to a specific piece of content, or for a category or class of content.

7. Classification Decision Makers

Recommendation 7–1 The Classification of Media Content Act should enable the Regulator to determine, of the content that must be classified, what content must be classified by the Classification Board. The determination should be set out in a legislative instrument.

Recommendation 7–2 The Classification of Media Content Act should provide that the Regulator, in determining the content that must be classified by the Classification Board, should have regard to matters including:

(a) the need for a classification benchmark, particularly for popular or new types of media content;

(b) the need for content to be classified by an independent decision maker;

(c) the classification of similar content in other jurisdictions;

(d) evidence of rigorous and reliable industry classification decision making;

(e) the capacity of the Classification Board to make timely classification decisions; and

(f) the cost to content providers of Classification Board decisions.

Recommendation 7–3 The Classification of Media Content Act should provide that, on commencement of the new National Classification Scheme, of the content that must be classified, the following content must be classified by the Classification Board:

(a) feature films for Australian cinema release; and

(b) computer games that are likely to be MA 15+ or higher.

Recommendation 7–4 The Classification of Media Content Act should provide that, other than media content that must be classified by the Classification Board, media content may be:

(a) classified by the Classification Board;

(b) classified by an authorised industry classifier; or

(c) deemed to be classified because it has been classified under an authorised classification system.

Recommendation 7–5 The Classification of Media Content Act should provide that industry classifiers must have completed training approved by the Regulator and be authorised by the Regulator to classify media content.

Recommendation 7–6 The Classification of Media Content Act should enable the Regulator to determine, in a legislative instrument, that certain films, television programs and computer games with a classification made under an authorised classification system, are deemed to have an equivalent Australian classification.

Recommendation 7–7 The Classification of Media Content Act should provide that in determining whether a classification system is an authorised classification system, the Regulator should have regard to matters including:

(a) the comparability of classification decision-making processes, classification categories and criteria with the Australian classification scheme;

(b) the independence and composition of decision-making bodies;

(c) the endorsement or adoption by national classification regulatory regimes;

(d) the transparency of classification decision-making processes and classification criteria;

(e) complaints and review mechanisms;

(f) public reporting of classification activities; and

(g) research and development activities.

Recommendation 7–8 The Classification of Media Content Act should enable the Regulator to develop and authorise classification decision-making instruments, such as online questionnaires.

Recommendation 7–9 The Classification of Media Content Act should provide that, in addition to classifying media content submitted for classification, the Classification Board is responsible for reviewing classification decisions, including its own, on application. Therefore the Classification Review Board would cease to operate.

Recommendation 7–10 The Classification of Media Content Act should enable the Regulator to conduct audits of industry classification decisions.

Recommendation 7–11 The Classification of Media Content Act should enable the Regulator to call in:

(a) unclassified media content for classification by the Classification Board; and

(b) deemed content or content classified by authorised industry classifiers, for review of the classification decision by the Classification Board.

The call-in power should be confined to content that must be classified or to which access must be restricted.

Recommendation 7–12 The Classification of Media Content Act should provide for civil and administrative penalties in relation to improper classification decision making. The Regulator should be enabled to:

(a) pursue civil penalty orders against content providers;

(b) issue barring notices to industry classifiers; and

(c) revoke the authorisation of industry classifiers.

8. Markings, Modifications, Time Zones and Advertising

Recommendation 8–1 The Classification of Media Content Act should provide that content providers must display a classification marking for content that must be classified and has been classified. This marking should be shown, for example, before broadcasting the content, on packaging, on websites and programs from which the content may be accessed, and on advertising for content directed to Australian audiences.

Recommendation 8–2 The Classification of Media Content Act should provide that if classified media content is modified, so that the modified content is likely to have a different classification from the original content, the modified content becomes unclassified. The Act should not prescribe specific types of modifications that operate to declassify content.

Recommendation 8–3 The Classification of Media Content Act should provide that if classified content is changed, so that the consumer advice no longer gives accurate information about the content, then the content must be given new consumer advice, even if the content does not need to be given a different classification.

Recommendation 8–4 The Classification of Media Content Act should not mandate time-zone restrictions for broadcasting services, but these restrictions may be provided for in industry codes.

Recommendation 8–5 Advertisements for content that must be classified should continue to be subject to the existing voluntary advertising codes, with complaints being handled by the Advertising Standards Board. These voluntary codes should be amended to provide that, in assessing the suitability of an advertisement for media content that must be classified, the following matters should be considered:

(a) the likely audience of the advertisement;

(b) the impact of the content in the advertisement; and

(c) the classification or likely classification of the advertised content.

9. Classification Categories and Criteria

Recommendation 9–1 The Classification of Media Content Act should provide that one set of classification categories applies to all classified media content as follows: G, PG, M, MA 15+, R 18+, X 18+ and Prohibited. Each item of media content classified under the National Classification Scheme should be assigned one of these statutory classification categories.

Recommendation 9–2 The Classification of Media Content Act should provide that classification decisions for content that must be classified, other than G content, must also be assigned consumer advice. The Classification Board should publish consumer advice guidelines as a reference for all industry classifiers.

Recommendation 9–3 The Classification of Media Content Act should provide for one set of statutory classification criteria and that classification decisions be made applying these criteria.

Recommendation 9–4 The Regulator’s functions should include conducting or commissioning a range of research activities that consider matters such as:

(a) community standards in relation to media content;

(b) awareness of classification information;

(c) adequacy of classification categories, the classifiable elements and the impact test;

(d) content permitted in different classification categories; or

(e) alignment of classification decisions with the views of the public.

10. Restricting Access to Adult Content

Recommendation 10–1 The Classification of Media Content Act should provide that content providers should take reasonable steps to restrict access to adult content that is sold, screened, provided online or otherwise distributed to the Australian public. Adult content is:

(a) content that has been classified R 18+ or X 18+; or

(b) unclassified content that, if classified, would be likely to be classified R 18+ or X 18+.

The Classification of Media Content Act should not mandate that all adult content must be classified.

Recommendation 10–2 The Classification of Media Content Act should provide the Regulator with the power to issue ‘restrict access notices’ to providers of adult content. For the purpose of issuing these notices, the Regulator should be empowered to determine whether the content is adult content.

Recommendation 10–3 The Classification of Media Content Act should provide that the reasonable steps that content providers must take to restrict access to adult content may be set out in:

(a) industry codes, approved and enforced by the Regulator; and

(b) standards, issued and enforced by the Regulator.

These codes and declarations may be developed for different types of content, content providers and industries, but could include:

(a) how and where to advertise, package and display hardcopy adult content;

(b) the promotion of parental locks and user-based computer filters;

(c) how to confirm the age of persons accessing adult content online; and

(d) how to provide warnings online.

Recommendation 10–4 The Classification of Media Content Act should not require access restrictions on MA 15+ media content. Voluntary access restrictions on MA 15+ content should be developed under industry codes, for example, for cinemas and retail outlets.

11. The Scope of Prohibited Content

Recommendation 11–1 Under the Classification of Media Content Act, the ‘Refused Classification’ category of content should be named ‘Prohibited’.

Recommendation 11–2 The Classification of Media Content Act should frame the ‘Prohibited’ category more narrowly than the current ‘Refused Classification’ category. In particular, the Australian Government should review current prohibitions in relation to:

(a) the depiction of sexual fetishes in films; and

(b) ‘detailed instruction in the use of proscribed drugs’.

The Government should also consider confining the prohibition on content that ‘promotes, incites or instructs in matters of crime’ to ‘serious crime’

12. Prohibiting Content

Recommendation 12–1 The Classification of Media Content Act should provide that content providers must not sell, screen, provide online, or otherwise distribute Prohibited content, that is:

(a) content that has been classified Prohibited; or

(b) unclassified content that, if classified, would be likely to be classified Prohibited.

Recommendation 12–2 The Classification of Media Content Act should provide that content must be classified Prohibited by the Classification Board before a person is:

(a) charged with an offence under the Act that relates to Prohibited content; and

(b) issued a notice requiring the person to stop distributing the Prohibited content, for example by taking it down from the internet.

Recommendation 12–3 The Classification of Media Content Act should enable the Regulator to notify Australian or international law enforcement agencies or bodies about Prohibited content without having the content first classified by the Classification Board.

13. Codes and Co-regulation

Recommendation 13–1 The Classification of Media Content Act should provide for the development of industry classification codes by sections of industry or persons involved in the production and distribution of media content; and for the Regulator to request that a body or association representing a particular section of industry develop a code.

Recommendation 13–2 Industry classification codes may include provisions relating to:

(a) methods of restricting access to certain content;

(b) the use of classification markings;

(c) methods of classifying media content, including by authorised industry classifiers;

(d) guidance on the application of statutory classification criteria;

(e) maintaining records, reporting classification decisions and quality assurance;

(f) protecting children from certain content;

(g) providing consumer information in a timely and clear manner;

(h) providing a responsive and effective means of addressing community concerns, including complaints handling; and

(i) reporting to the Regulator on the administration of the code.

Recommendation 13–3 The Classification of Media Content Act should enable the Regulator to approve an industry classification code if satisfied that:

(a) the code is consistent with statutory obligations to classify and restrict access to media content and statutory classification categories and criteria;

(b) the body or association developing the code represents a particular section of the media content industry; and

(c) there has been adequate public and industry consultation on the code.

Recommendation 13–4 The Classification of Media Content Act should enable the Regulator to determine an industry standard if:

(a) there is no appropriate body or association representing a relevant section of industry; or

(b) a request to develop an industry code is not complied with.

Recommendation 13–5 The Classification of Media Content Act should enable the Regulator to enforce compliance with a code against any participant in the relevant section of the media content industry, where an industry classification code relates to media content that must be classified or to which access must be restricted.

14. The Regulator

Recommendation 14–1 A single agency (‘the Regulator’) should be responsible for regulation under the Classification of Media Content Act. The Regulator’s functions should include:

(a) encouraging, monitoring and enforcing compliance with classification laws;

(b) handling complaints about the classification of media content;

(c) authorising industry classifiers and providing and approving classification training;

(d) facilitating the development of industry classification codes and approving and maintaining a register of such codes;

(e) liaising with relevant Australian and overseas media content regulators, classification bodies and law enforcement agencies; and

(f) educating the public about the National Classification Scheme.

In addition, the Regulator’s functions may include:

(g) providing administrative support to the Classification Board;

(h) maintaining a database of classification decisions;

(i) assisting with the development of classification policy and legislation;

(j) conducting or commissioning research relevant to classification; and

(k) promoting media literacy and cyber-safety.

Recommendation 14–2 The Classification of Media Content Act should provide the Regulator with broad discretion whether to investigate complaints.

15. Enacting the New Scheme

Recommendation 15–1 The Classification of Media Content Act should be enacted pursuant to the legislative powers of the Parliament of Australia.

Recommendation 15–2 The Classification of Media Content Act should express an intention that it cover the field, so that any state legislation operating in the same field ceases to operate, pursuant to s 109 of the Constitution.

16. Enforcing Classification Laws

Recommendation 16–1 The Classification of Media Content Act should provide for enforcement of classification laws under Commonwealth law.

Recommendation 16–2 The Classification of Media Content Act should provide a flexible range of compliance and enforcement mechanisms allowing the Regulator, depending on the circumstances, to:

(a) issue notices to comply with provisions of the Act, industry codes or standards;

(b) accept enforceable undertakings;

(c) pursue civil penalty orders;

(d) refer matters for criminal prosecution; and

(e) issue infringement notices.

Recommendation 16–3 The Classification of Media Content Act should provide for the imposition of criminal, civil and administrative penalties in relation to failing to comply with:

(a) notices of the Regulator;

(b) an industry code or standard;

(c) restrictions on the sale, screening, online provision and distribution of media content;

(d) statutory obligations to restrict access to media content; and

(e) statutory obligations to classify and mark media content.

Recommendation 16–4 The Classification of Media Content Act should require the Regulator to issue enforcement guidelines outlining the factors it will take into account and the principles it will apply in exercising its enforcement powers.