1.45 This chapter provides an outline of the background to the Inquiry and an analysis of the scope of the Inquiry as defined by the Terms of Reference. It also describes the development of the evidence base to support the law reform response as reflected in the recommendations of this Report.
1.46 Chapter 2 describes the historical background to current classification laws, and the framework of the current National Classification Scheme, including the classification cooperative scheme for publications, films and computer games, and classification laws as applied to broadcasting, online and mobile content under the Broadcasting Services Act. The roles of the AGD, Classification Board, the Classification Review Board and the ACMA are outlined, along with that of industry under co-regulatory codes of practice for online and broadcast content. The chapter assesses the current scheme, looking at aspects that work reasonably well and those that are not working well and are in need of reform. The chapter concludes by noting the strong arguments made to the ALRC about the need for fundamental reform and for a new classification scheme.
1.47 Chapter 3 outlines factors in the media environment that necessitate reform of classification law and the development of a new scheme. It identifies the range of trends that have been associated with media convergence, including increased access to high-speed broadband internet, digitisation, globalisation, accelerated innovation, the rise of user-created content and the changing nature of the media consumer, and the blurring of distinctions between public and private media consumption. The chapter also draws attention to recent work undertaken by the ACMA on ‘broken concepts’ in existing broadcasting and telecommunications legislation, and their relevance to media classification.
1.48 Chapter 4 identifies eight guiding principles for reform directed to providing an effective framework for the classification of media content in Australia, and the context in which the guiding principles relate to law reform and media policy. It is proposed that these principles inform the development of a new classification scheme that can best meet community needs and expectations, while being more effective in its application and responsive to the challenges of technological change and media convergence.
1.49 Chapter 5 presents the ALRC’s central recommendations to establish a new scheme regulating the classification of media content, through the enactment of a new Classification of Media Content Act. Under the Act, a single agency would be responsible for regulating the classification of media content and other classification-related laws. The new Act will impose obligations to classify and restrict access to some content. Chapter 5 also explains the obligations of content providers under the new Act, including online content providers.
1.50 Chapter 6 outlines what content should be required to be classified under the new scheme. It is recommended that the question of whether something must be classified should no longer turn upon the platform on which the content is accessed, but rather on whether the content is made and distributed on a commercial basis and has a significant Australian audience.
1.51 The ALRC recommends that the following content should be required to be classified before it is sold, screened, provided online or otherwise distributed to the Australian public: feature films; television programs; and computer games likely to be classified MA 15+ or higher. However, this content should only be required to be classified if it is both made and distributed on a commercial basis, and likely to have a significant Australian audience. The classification of most other media content—for example, books, magazines, websites, music and computer games likely to be G, PG and M—should become or remain voluntary, but industry bodies should develop codes of practice that promote classification of some of this other content.
1.52 Chapter 7 outlines who should be responsible for making classification decisions and mechanisms for appropriate review and regulatory oversight of classification activities. The ALRC recommends that the Classification Board should continue to have sole responsibility for classifying certain media content, including films for Australian cinema release and computer games likely to be MA 15+ or higher. The remaining media content that must be classified, including feature films not for cinema release and television programs, may be classified by authorised industry classifiers.
1.53 The chapter also discusses how the classification scheme may respond more flexibly to the evolving media content environment, recommending that the Regulator have powers to: determine the media content that must be classified by the Board; and determine that certain media content that has been classified under an authorised classification system may be ‘deemed’ to have an equivalent Australian classification. The ALRC also recommends the introduction of authorised classification instruments, such as online questionnaires that reflect Australian classification criteria.
1.54 Chapter 8 deals with laws that attach to content that must be classified—laws which prescribe how such content should be marked, packaged and advertised, and when and where this content may be screened. The ALRC recommends that the new Act should provide that, for content that must be classified, content providers must generally display a classification marking, but that the detail concerning precisely when and how such markings should appear should be provided for in industry codes approved by the Regulator. The chapter also discusses when classified content is changed in such as way that it should be reclassified, or given new consumer advice, proposing a more flexible modifications policy. The ALRC also considers the phasing out of time-zone restrictions imposed on commercial broadcasting services, in the context of the digital switchover and as parental locks become used more widely.
1.55 Chapter 9 discusses classification categories and criteria for making classification decisions. The ALRC recommends that the existing classification categories should be harmonised and classification criteria combined, in order to ensure that the same categories and criteria are applied to the classification of all media content. The objective of these changes is that all classifiers use the same classification tools to make decisions, so that consumers can be assured of receiving clear and consistent classification information that has the same meaning no matter what the media content or the platform from which it is accessed.
1.56 The ALRC recommends the following statutory classification categories for uniform application across all media content: G, PG, M, MA 15+, R 18+, X 18+ and Prohibited. This recommendation involves several changes, including: the abolition of the publications-specific classifications, ‘Unrestricted’, ‘Category 1 Restricted’ and ‘Category 2 Restricted’; the abolition of the MAV 15+ and AV classifications used by some television broadcasters; and renaming of the RC category as ‘Prohibited’.
1.57 Chapter 10 discusses ‘adult content’ (media content that has been, or is likely to be, classified R 18+ or X 18+) and how content providers will be expected to take reasonable steps to restrict access to the adult content they distribute to the Australian public. The R 18+ and X 18+ classifications are high thresholds, but when the thresholds are met, the ALRC recommends that such content should be restricted across all platforms, both online and offline. While it is acknowledged that restricting access to this content presents difficulties online, the ALRC considers that providers of this content should have some obligation to try to warn potential viewers and help prevent minors from accessing it, irrespective of the platform used to deliver the content.
1.58 The chapter reviews various methods of restricting access, noting that some methods may only be suitable for some content providers. It is also noted that protecting minors from adult content will continue to rely to a significant degree upon parental supervision and the effective use of PC-based filters and parental locks, and promoting the use of these tools may be one important way content providers can comply with their statutory obligation to take reasonable steps to restrict access to adult content. The ALRC recommends that methods of restricting access to online and offline content should be set out in industry codes and Regulator standards, enforced by the Regulator.
1.59 Chapter 11 discusses the scope of the current RC category and the legislative framework defining RC content. Under the current framework, RC content is essentially banned, and its sale and distribution is prohibited by Commonwealth, state and territory enforcement legislation. The ALRC recommends that, under the Classification of Media Content Act, the RC category should be named ‘Prohibited’, to better reflect the nature of the category. The ALRC also recommends that the Classification of Media Content Act should frame the ‘Prohibited’ category more narrowly than the current RC category, and suggests a range of possible changes to the existing criteria, that government might consider.
1.60 Chapter 12 discusses prohibitions on the distribution of Prohibited content, including the existing mechanisms both ‘offline’ and ‘online’. The ALRC recommends that the Classification of Media Content Act should provide that content providers must not distribute Prohibited content (whether so classified or likely to be so classified). The ALRC also recommends that content must be classified Prohibited by the Classification Board before a person can be charged with a relevant offence under the Act or issued a notice to stop distributing the content. Further, the ALRC recommends that the 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. The chapter also discusses voluntary and mandatory internet filtering, and debates about the scope of Prohibited content online.
1.61 In Chapter 13, the ALRC recommends that the Classification of Media Content Act should provide for the development and operation of industry classification codes, consistent with statutory obligations to classify and restrict access to media content and with statutory classification categories and criteria. The chapter examines the possible processes for the development of industry classification codes, and recommends mechanisms for the approval and enforcement of codes by the new Regulator.
1.62 Chapter 14 discusses the establishment of a single Regulator with primary responsibility for regulating the new classification scheme. The Regulator would be responsible for most regulatory activities related to the classification of media content—both offline and online. The Classification Board would be retained as an independent statutory body responsible for making some classification decisions and reviewing decisions.
1.63 Chapter 15 discusses the legislative and constitutional basis for the existing classification cooperative scheme and the Broadcasting Services Act. The ALRC recommends that the new Classification of Media Content Act be enacted pursuant to the legislative powers of the Parliament of Australia and not as part of any new cooperative scheme.
1.64 Chapter 16 discusses enforcement of classification laws under the classification cooperative scheme. While the enforcement of classification laws has primarily been the responsibility of states and territories, these arrangements contribute to problems of inconsistency in offence and penalty provisions between Australian jurisdictions and lack of compliance with classification laws. The ALRC concludes that the Australian Government should be responsible for the enforcement of classification laws and makes recommendations for a regime of offences and penalties.