Podcast: Commissioner Terry Flew on recommendations made in the Classification Review’s Final Report

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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.

Issue 12 | 1 March 2012   View original format

Final Report tabled today!

The Final Report for the National Classification Scheme Review, Classification—Content Regulation and Convergent Media (ALRC Report 118), was tabled in Parliament today.  It is now publicly available for viewing, download or purchase. A smaller Summary Report is also available.

The report makes 57 recommendations for a national classification scheme in the new media landscape.

The full media release is available on the website, as are the Final and Summary Reports:

• Classification—Content Regulation and Convergent Media (ALRC Report 118)
• Summary Report

In the course of the National Classification Scheme Review, the ALRC commissioned consultants Urbis Pty Ltd to conduct a series of forums to assess community attitudes to content that falls within higher-level classification categories. The report contains an analysis of the findings of that pilot study, and is also now available on the ALRC website.

• Community Attitudes to Higher Level Media Content – Results of Pilot Study

As the Final Report is now tabled, this is the last Classification e-news we will be sending out.

The ALRC’s recommendations do not automatically become law. The Australian Government decides whether to implement the recommendations, in whole or in part, and there is no set time frame in which the Government is required to respond. Implementation of ALRC recommendations is tracked and recorded each year in the ALRC’s Annual Report. We also provide updates about implementation in the ALRC Brief.

Once again, we’d like to thank you all for your interest and participation in this Review.

“Australia needs a new classification scheme that applies consistent rules to media content on all platforms—in cinemas, on television, on DVDs and on the internet,” said Professor Terry Flew, Commissioner in charge of the ALRC’s review of the National Classification Scheme. “But the scheme also needs to be flexible, so it can adapt to new technologies and the challenges of media convergence.”

This is one of the key messages in the ALRC’s 118th report, Classification—Content Regulation and Convergent Media, tabled in Parliament today. The report makes 57 recommendations for a national classification scheme in the new media landscape.

The key features of the new scheme in the ALRC’s report are:

• Platform-neutral regulation with one set of laws establishing obligations to classify or restrict access to content across media platforms.
• Clear scope of what must be classified:feature films and television programs, as well as  computer games likely to be MA 15+ or higher, that are both made and distributed on a commercial basis, and likely to have a significant Australian audience.
• A shift in regulatory focus to restricting access to adult content, byimposing new obligations on content providers to take reasonable steps to restrict access to adult content and to promote cyber-safety.
• Co-regulation and industry classification, with more industry classification of contentand industry development of classification codes, but subject to regulatory oversight.
• Classification Board benchmarking and community standards, with a clear role for the Classification Board in making independent classification decisions that reflect community standards.
• An Australian Government scheme that replaces the current cooperative scheme with enforcement under Commonwealth law.
• A single regulator with primary responsibility for regulating the new scheme.

“Classification criteria should also be reviewed periodically, to ensure they reflect community standards”, said Professor Flew. “One category that may no longer align with community standards is ‘Refused Classification’ or ‘RC’. The scope of this category should be narrowed, and the ALRC suggests changes for government to consider.”

ALRC President, Professor Rosalind Croucher said, “Australians value classification information about films, computer games and television programs, and the new scheme will continue to deliver this important advice. The ALRC has recommended a balanced approach, recognising that it is not practically possible in a digital age to classify everything. An effective scheme of content regulation must address this context.”

“The ALRC’s scheme also expects content providers to take reasonable steps to restrict access to adult content, so that children are better protected from material that might harm or disturb them,” Professor Croucher said.

The Report can be viewed, downloaded or purchased on the ALRC website.

Issue 11 | 28 February 2012   View original format

Final Report delivered!

This afternoon, the Classification team delivered its Final Report on the Review of the National Classification Scheme to the Attorney-General. Under the ALRC Act, the Attorney-General now has 15 Parliamentary sitting days in which to table the Report. Until it is tabled, the Report is under embargo and the ALRC is unable to make any comment about its recommendations or the Report’s content.

We have also produced a short Summary Report that provides an accessible overview of the ALRC’s recommendations and approach to reform. Once these publications have been tabled, they will be available to purchase from the ALRC’s website in hard copy, and will also be free to view or download from the website. We will let you know via this newsletter as soon as they are publicly available.

Farewell to Professor Terry Flew

With the conclusion of the Inquiry the ALRC also says farewell to Professor Terry Flew, who now returns to his position as Professor of Media and Communication in the Creative Industries Faculty at the Queensland University of Technology. It has been a real privilege to work with Terry and the ALRC has greatly benefited from his experience, expertise and perspective on media technologies and communications. The Classification team have developed their media thinking and language and Terry, as a non-lawyer, has earned his stripes in law reform. We have all learned much from each other. Terry’s infectious good humour will be missed and we wish him well in his return to academic life.

Thank you!

Thank you to everyone who contributed to this Inquiry. Law reform work needs the committed and sustained involvement of the range of communities relevant to each inquiry. Such engagement underpins the integrity of the final reports and their law reform recommendations.

New Inquiry

The ALRC expects to receive Terms of Reference for a new inquiry on copyright law. We anticipate that many people and groups that had an interest in the Classification Review may also have an interest in this new inquiry. If you would like to receive updates about the Copyright Inquiry, please subscribe to the e-news.

Issue 10 | 25 October 2011   View original format

New online discussion forum

In August this year, following the close of submissions to the Issues Paper, we hosted a discussion forum on the ALRC website focussing on the 8 draft principles for reform.

We have now opened a new online discussion board, starting with questions relating to ISP responsibilities, time-zone restrictions, restricted access systems and international classification systems.  The forum provides an opportunity to give less formal opinions and engage in public discussion on a few of the issues under consideration.

Visit the discussion forum >>

‘Politics of play’ – public debate about the classification of games

‘Politics of play’ is a free public debate organised by the Interactive Media Institute and hosted by Macquarie Uni as part of the university’s GAME festival. The debate will look at the issues surrounding the creation of an R18+ classification for video games in Australia and how interactive entertainment is treated compared to other forms of media such as films, as well as the impact of games on society. Participants will also discuss some of the issues raised by the ALRC’s review of the National Classification Scheme. Professor Terry Flew, Commissioner in charge of the Review, will be participating in the roundtable, along with members of the Australian Classification Board and Classification Branch and a range of academics, including Jeffrey Brand from Bond University, who has just released the Digital Australia 12 study into games in Australia.

‘Politics of play’ takes place on 27 October.  Admission is free. Register your intent to attend >>

See related article: Meet The Man Who Could Revolutionise Game Classification In Australia >>

Submissions in response to the DP

The ALRC will be publishing public submissions on its website. We have received just a few so far, but it is common to receive the bulk of submissions closer to the submission deadline. That said, please keep in mind that the submission date is less than four weeks away.

Make a submission >>

Commissioner in charge of the Review, Professor Terry Flew, talks about problems inherent in the current system, and the new model proposed in the ALRC Discussion Paper.

Audio

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Transcript

Sabina Wynn (SW): Hello, I’m Sabina Wynn, the Executive Director of the Australian Law Reform Commission and I’m here with Professor Terry Flew, the Commissioner in charge of the National Inquiry into the Classification System.

Terry Flew (TF): Thanks, thanks very much for having me here, Sabina.

SW: So Terry, the ALRC’s just released a Discussion Paper about proposed reforms to the classification system, I was just wondering if you could outline what’s actually wrong with the current system.

TF: Well, there’s two levels of problems with the current system. The first is that it is highly fragmented. It’s fragmented in terms of lines of authority between agencies and departments, it’s fragmented between the Commonwealth, States and Territories, it deals with very similar content in very different ways, perhaps most famously with the absence of an R18+ classification for computer games. It also is very poorly equipped to deal with the challenges of convergence. Much of the regulation uses, as one of our submitters described it, analog legislation in a digital world, and it doesn’t really deal particularly well with online media and the range of innovative digital services, platforms and devices that are becoming increasing mainstream for ordinary Australians.

SW: The ALRC is proposing a new model in the Discussion Paper, could you just outline what the key elements are of the new model.

TF: The key elements of the new model are that we are proposing a new framework with a greater role for co-regulatory codes in classifying what might be described as lower level content, that is to say content below the level of MA15+. We envisage this being part of a new classification of media content act that would aim, where possible, to apply comparable provisions to online and offline media, achieving the principle of platform neutrality. We also envisage bringing together the various regulatory agencies and authorities under Commonwealth jurisdiction, to manage the activities currently undertaken across some platforms by the Australian Communications and Media Authority and in other areas by the Classification Board. We also envisage the development of new classification categories, moving from a platform-based framework to a content-based framework. These would include the new categories of PG8+ and T13+ which would replace the current M classification. And we’re also going to provide content providers with the option of developing content that fits a C classification that is to say specifically for children.

SW: And what do you think the key things will be that will be affected, or achieved, by these reforms?

TF: Well, a lot of what we’ve heard from both industry and the community is that the current framework is confusing and uncertain in its goals and in its application. So we believe greater consistency, greater certainty, the element of platform neutrality, that is to say to treat content in a similar way across different media platforms, the development of more consistent laws across Australia, enabling industry to deal more directly with the classification of content, a better alignment of the treatment of online content and content in other areas, and a system that can better adapt to technological convergence as we’re seeing it now and as we will see it into the future, in ways that are more cost effective, reduce the regulatory burden and allow Commonwealth agencies to be better focused on the areas of content in which there are the highest levels of community concern.

SW: The ALRC’s Discussion Paper has around 44 proposals for reform that go to those issues that you just described. What now would be the process for people providing feedback?

TF: Well, we received almost 2,400 public submissions in response to the Issues Paper so we are certainly aware of a high level of interest in the work being undertaken. We encourage members of the public to make submissions in response to the Discussion Paper. We ask some specific questions, for instance, around the continued relevance of time banding for television or the scope of the Refused Classification category particularly as it pertains to online content. Also if people believe that there are proposals there that they don’t agree with they should let us know. If there are areas that they feel haven’t been adequately covered we also want to hear about that and we want to continue the conversation across a number of media platforms including Facebook and Twitter, up to the release of the Final Report in February 2012.

SW: Thanks Professor Flew. People have until 18 November to get their submissions in to the ALRC and as with other Discussion Papers and Issues Papers, you’re able to put your submission in online using an online form and you can, of course, respond to as many questions or proposals as you would like and also, if you would prefer, you can always email your submissions directly to the ALRC. Thanks.

TF: Thank you.

“In an age of media convergence, Australia needs a 21^st century classification system that is more platform-neutral, concentrates government regulation on media content of most concern to the community, and a system that can be adapted to accelerated media innovation,” said Professor Terry Flew, Commissioner in charge of the National Classification Scheme Review.

“The goals of classification in balancing individual rights with community standards and protection of children remain vitally important, but we need a new framework that minimises costs and regulatory burden, and does not penalise Australian digital content industries in a hyper-competitive global media environment.”

Drawing on over 2,400 submissions responding to its May Issues Paper, the Australian Law Reform Commission found that the existing classification framework is fragmented, approaches content inconsistently across media platforms, and is confusing for industry and the wider community.

The ALRC today released the National Classification Scheme Review Discussion Paper (ALRC DP 77) that puts forward 43 proposals for reform on which it is seeking public input. These proposals focus on the introduction of a new Classification of Media Content Act covering classification on all media platforms—online, offline and television. The ALRC proposes what media content should continue to be classified, who should classify it, and who should have responsibility for enforcement.

The proposed new framework envisages:

• a greater role for industry in classifying content—allowing government regulators to focus on the content that generates the most community concern, and ensure access to adult content is properly restricted;
• content will be classified using the same categories, guidelines and markings whether viewed on television, at the cinema, on DVD or online;
• changes to classification categories, with age references—PG 8+ and T 13+ (Teen)—to help parents choose content for their children; and
• the Commonwealth taking on full responsibility for administering and enforcing the new scheme.

ALRC President Professor Rosalind Croucher said, “The ALRC has heard loud and clear that the current system is broken and no longer fits with how people are consuming media content. It is poorly equipped to deal with the challenges of media convergence, and the case for reform is strong. The ALRC is proposing reform that can be phased in to allow time for industry and the community to adapt to the new scheme. Responses to the Discussion Paper will help inform the development of final recommendations for reform”.

The Discussion Paper and Discussion Paper Summary are available on the ALRC website. The ALRC encourages submissions from the public. For information about making submissions visit the ALRC website.

Closing date for submissions is 18 November 2011.

Subscribe to National Classification Review e-news: www.alrc.gov.au/inquiries/classification/subscribe-e-news.

Follow the Inquiry on Facebook (/clasrev) and Twitter (@AusLawReform).

Issue 9 | 30 September 2011   View original format

Discussion Paper now available

The ALRC is releasing today the National Classification Scheme Review Discussion Paper (ALRC DP 77), and is calling for submissions from the public.

The DP proposes a new framework which envisages:

• a greater role for industry in classifying content under co-regulatory codes
• that content will be classified in the same way whether it is viewed on television, at the cinema, on DVD or online;
• changes to classification categories to make them more age-based, assisting parents in knowing what is best for their children, and
• the Commonwealth taking on full responsibility for administration and enforcement of the new scheme.

The DP puts forward 43 specific proposals for reform on which it is seeking public input.

Submissions close on 18 November 2011.

Because we appreciate the time constraints on stakeholders and the impracticality of asking all respondents to tackle the full Discussion Paper, we have also produced a brief Summary Paper. It gives informed stakeholders easy access to the principles on which our ideas are based and what we are actually suggesting.

View or download the Discussion Paper >>
View or download the Discussion Paper Summary >>

See Media Release >>
Audio: Commissionner Terry Flew discusses the DP >>

Making a submission

Submissions are actively sought by the ALRC from a broad cross-section of the community, as well as those with a special interest in the inquiry. These submissions are crucial in assisting the ALRC to develop its final recommendations. It is helpful if comments address specific questions or proposals in the Discussion Paper.

We strongly encourage respondents to make their submissions using the online submission form. We are in the process of developing that form, and it will be available by Thursday 6 October. It will accessible via this webpage: www.alrc.gov.au/inquiries/classification/respond-discussion-paper.

It is also possible to provide your submission via email or mail.

Find out more >>

Issue 8 | 7 September 2011 

Over the course of three weeks, the ALRC hosted an online discussion forum encouraging comment on a set of eight draft principles that are being proposed as the foundations of a new National Classification Scheme. The forum attracted 98 comments, from 29 participants. We would like to thank everybody who participated in the discussion.

Commenting is now closed but the discussion is still online for viewing: www.alrc.gov.au/public-forum/classification. It is difficult to do justice to all of the comments. We can, however, note some of the key issues raised in relation to the draft principles.

• In relation to Principle 1 – regarding the right for Australians to see, hear and participate in the media of their choice – the question of a “right to publish/communicate” arose
• The need for a rigorous review of community standards, that can also track changes over time
• Need for more age-based granularity in an understanding of “children”
• Concept of “harm” from media needs to be better defined
• Classification as consumer information should be understood separately from its use as a basis for restricting access to media content
• Different views on whether “public” media and the Internet should be treated differently in principle (as distinct from what is practicable)
• Need to give industry/producers/distributors more direct ownership of classification process in order to get greater responsiveness, particularly from overseas entities
• Mandatory schemes encourage the movement of activities offshore
• Purpose of regulation needs to be justifiable, not just clear
• Differing views on desirability of “platform neutral” classification
• Inconsistencies in current arrangements for training and accreditation of media classifiers. An additional principle was suggested, that “the classification framework should require a consistent standard in relation to training and accreditation of classifiers”
• Any future scheme needs to recognise the realities of what is possible

View the discussion online >>

Last weekend the ALRC placed advertisements in 19 different newspapers around Australia calling for volunteers to participate in focus groups. The focus groups (2 groups of 15 people) are intended to test the kind of content that may be permissible in higher level classification categories (MA15+ and above, including the Refused Classification category). This is a pilot project that will test a methodology for possible further assessment panels that might be held to determine community standards with regards to classification categories in the future.
 
Applications close on 19 September 2011. We have received around 500 applications so far.
 
Find out more about the focus groups >>

We plan to release the Discussion Paper on 30 September, calling for submissions in response to a range of proposals and questions. The deadline for submissions will be 14 November 2011, so stakeholders intending to make a submission should allot some time to do so during this period. As we have to report by the end of January, stakeholders need to keep to the timetable for submissions. 

We will also, at that stage, undertake a further round of national consultations.

The ALRC is conducting a review of the classification system in Australia. As part of this review, the ALRC will hold community focus groups to test the kind of content that may be permissible in higher level classification categories (MA15+ and above, including the Refused Classification category). This is a pilot project that will test a methodology for possible further assessment panels that might be held to determine community standards with regards to classification categories in the future.

The ALRC will convene two volunteer focus groups in Sydney at which participants will be asked to view and discuss films, computer games, publications and online content.

The Pilot will consist of two focus groups of 15 adults who represent a broad cross section of the Australian community. The ALRC seeks applications from members of the community to participate in this process.

Volunteers must be over 18 years of age.

Each focus group will be held on one day only for half a day. All groups will be held in Sydney on either Saturday 22 October, Monday 31 October, or Wednesday 2 November. You must be available to attend on one of these days.

Please complete the application form, and include a description comprising no more than 300 words outlining why you are interested in taking part in the focus groups. The ALRC wants to ensure that we include people from diverse communities and backgrounds and from all parts of Australia.  You must also describe in your application how you believe you will deal personally with viewing and discussing the offensive and confronting material.

A limited number of volunteers will be selected to take part and will be notified by the ALRC no later than 14 October 2011. If you do not hear from the ALRC, you can presume that you have not been selected to participate at this time.

Participation in these focus groups is completely voluntary and no fee will be provided. However, the ALRC will cover reasonable costs that participants incur  in order to attend the viewings and discussions, including  economy airfares, one night’s accommodation if necessary due to travel requirements,  and taxi fares to and from the airport. Lunch on the day of the focus group will also be provided.

Please submit your application to the ALRC by 19 September 2011. Online applications are preferred however you can also download the application form and provide this application form to the ALRC via post, fax or email if you prefer.

Applications closed on 19 September 2011.

Find out more about the National Classification Review >>