10.41 In Chapter 6, the ALRC argued that, under the new scheme, only a limited range of content should be required to be formally classified. However, the need for classification may appear more pressing when dealing with content that may harm or distress children. In the ALRC’s view, requiring all adult content to be formally classified by Australian classifiers is not the solution to this problem. Current laws that provide that some adult content must be classified on some platforms before being sold in some jurisdictions (for example, pornography on DVDs in the ACT and NT) should be replaced with media-neutral laws that mandate access restrictions on all adult content distributed in Australia. The new Act should not, however, provide that this content must be classified.
10.42 In the Discussion Paper, the ALRC presented a different view with respect to X 18+ content, and proposed that, if the sale of some X 18+ content were made legal in Australia, the content should be required to be classified. Even if it is unlikely that most adult content will be classified, the ALRC argued, by insisting that it should be, the law makes clear Australia’s standard on what may be acceptable to display in sexually explicit content. Although some submissions supported the proposal, many were critical, some suggesting that requiring distributors to have this content classified is absurd. For example, one person submitted that the vast majority of this content would be online content originating overseas:
Almost none of the millions of providers of this content will even attempt to have the material classified. As the providers are outside Australian jurisdiction, the law cannot be enforced. A law that cannot be enforced is a thoroughly bad law and only serves to bring the law into disrepute.
10.43 Civil Liberties Australia argued that this proposal would mean that Australia is enacting legislation that ‘has no teeth, cannot be enforced in any practical sense, and will be ignored by consumers and producers alike’. The Australian Communications and Media Authority (the ACMA) also submitted that enacting a law
where it is acknowledged that it cannot be complied with, or effectively enforced, is likely to lead to a low regard for such a law and, as a consequence, a significantly diminished culture of compliance. This would significantly undermine the law’s overall purpose.
10.44 One person said that a law requiring Australian adult websites to be classified would ‘make for a nice law’ that
will sit on the books and be admired as some kind of moral victory, but in reality it won’t make a shred of difference to how things work on the internet. Any Australian website that is still hosted here (and there are very few of them anyway) will simply shift offshore to the US where freedom of speech is guaranteed in the constitution.
10.45 Many providers of adult content, particularly those outside Australia, are highly unlikely to comply with a law requiring them to classify their content. Unclassified adult content is rife on the internet and sold in sex shops throughout the country. Many providers of this content do not comply with existing Australian laws, and are unlikely to comply with even more stringent and costly laws.
10.46 Requiring Australian classifiers to watch and classify all R 18+ and X 18+ content is not an effective or viable means of regulating adult content. Existing laws in the ACT and the NT that provide that pornography may be sold if classified by the Classification Board cannot be practically applied online. It is not feasible to require all pornography available in Australia to be watched and evaluated by Australian classifiers. There is a vast quantity of this content, and much of it is dynamic, widely dispersed, and user-generated. The pre-classification model of content regulation is not suited to the regulation of pornography, particularly online pornography—and as argued throughout this Report, regulating content sold on some platforms, but not others, is fast becoming unworkable. The ALRC considers that there should not be one set of laws for pornography on the internet, and another for pornography on DVDs and magazines.
10.47 In the ALRC’s view, if reasonable steps are taken to restrict access to adult content, there is no need to impose an obligation that the content also be classified. Imposing a classification requirement that will be widely ignored, and would in any event have a very limited effect on content hosted outside Australia, may lower respect for the law, and waste limited regulatory resources. This Report emphasises the importance of an effective and pragmatic regulatory response to adult content that accounts for the realities of the existing media environment.
10.48 It might be argued that classifying all pornography will help prevent the distribution of Prohibited content, much of which is sexually explicit. If publishers of adult content have trained classifiers review their content against criteria that prohibits certain depictions (for example, of sexual violence), then they may be less likely to sell films with Prohibited content. However, in the ALRC’s view, laws designed to stop the distribution of Prohibited content should target the Prohibited content itself, rather than X 18+ content.
10.49 Some providers of X 18+ content, on some platforms (principally DVDs), continue to have their content classified before offering it for sale in the ACT and parts of the NT, despite the fact that the same type of content is widely available online and illegally sold, often unclassified, in the Australian states. Publishers of some adult magazines also comply with requirements to have their content classified. Under the scheme recommended in this Report, providers of this content should be free to classify their material voluntarily, using either the Classification Board or authorised industry classifiers.
If X 18+ content must be classified, who should classify it?
10.50 The ALRC considers that X 18+ content should generally not be required to be classified, but regulation should instead focus on protecting minors from this content, and on ensuring that all Australians are equipped to avoid this content if they choose to. However, if the Australian Government determines that this content must be classified, then the ALRC suggests that authorised industry classifiers should be able to classify this content, rather than only the Classification Board. This idea was broadly supported by a number of stakeholders.
10.51 Some stakeholders argued that only the Classification Board should classify this content. FamilyVoice Australia, for example, said the pornography industry did not comply with existing laws and had proved itself untrustworthy.
This is illustrated by the failure by distributors of pornographic magazines and films to comply with call-in notices and the number of breaches of serial classifications … [It] is naive to propose that the pornography industry could be trusted to appropriately classify its own product.
10.52 The volume of this content alone suggests it is not possible for the Classification Board to classify all pornography on the internet, even if content providers were likely to submit it to the Board and pay for it to be classified. Any significant increase in the amount of X 18+ content going to the Classification Board would also mean Board members would have to spend a disturbingly large percentage of their working days watching pornography. This would not only be a health concern for Board members, but would also make it difficult to maintain a Board that was broadly representative of the Australian people.
10.53 However, industry classification would not mean that the adult industry will be self-regulated. As proposed in Chapter 7, industry decisions would be monitored and audited by the Regulator and reviewed by the Board. Industry classifiers would be trained, and have to be authorised by the Regulator. Additionally, classifiers who wrongly classify sexually explicit content could have their authorisations revoked and other sanctions could apply.
Should the sale and distribution of X 18+ content be prohibited entirely?
10.54 The sale and distribution of X 18+ films is currently illegal in most of Australia. Only in the ACT and the NT may X 18+ films be legally sold to adults. X 18+ content is also ‘prohibited content’ under the Broadcasting Services Act. Sexually explicit publications, however, may be sold in most of Australia.
10.55 Sexually explicit material is widely available and viewed by a large number of Australians. In 2001–02, research involving 20,000 Australians reportedly found that 25% had watched an adult film in the past 12 months. The proliferation of adult and specialist sex retail shops indicates there is considerable demand for sexually explicit content. There is also a vast amount of pornography available on the internet.
10.56 Many stakeholders called for the legalisation of the sale and distribution of X 18+ content, some arguing that the existing prohibitions were ineffective and widely ignored. Some argued that prohibiting the distribution of pornography conflicts with the principle that Australians ‘should be able to read, hear, see and participate in media of their choice’. For example, one person said the ALRC should recommend that X 18+ material should be lawfully available in all states and territories because most of the content would not be RC and this ‘would allow better regulation and reduced costs in law enforcement’.
10.57 Others, however, such as FamilyVoice Australia, called for ‘a comprehensive ban on the production, sale or exhibition of X 18+ films’, in part because this content was said to play a role in the premature sexualisation and sexual abuse of children, particularly Indigenous children.
The ACT government inherited permissive legislation on X 18+ films when it attained self-government. Sadly it has not followed the lead set by all six States in prohibiting the production and sale of X 18+ films. This has meant that despite State bans on the sale of X 18+ films anyone in Australia can purchase X 18+ films by mail order from the ACT. The Commonwealth, which retains ultimate responsibility under the territories power, ought to act to remedy this problem.
10.58 Likewise, the Senate Legal and Constitutional Affairs Committee recently recommended that ‘the exhibition, sale, possession and supply of X 18+ films should be prohibited in all Australian jurisdictions’.
10.59 The ALRC recognises that there are strongly held views on the nature of sexually explicit material. Gareth Griffith’s 2003 briefing paper, X Rated Films and the Regulation of Sexually Explicit Material, reviews the history of regulating pornography in Australia, and the arguments about whether the distribution of this content should be legal. The paper begins with a useful overview of the two broad views in debates about pornography:
For some, such material is exploitative, demeaning and degrading of participants and viewers alike; they argue its harmful effects, for individuals, families and the community at large, are apparent enough, even if these effects cannot be established with scientific certainty. From this perspective, sexually explicit material should be regulated out of existence.
Others are less censorious, perhaps sharing certain residual concerns about high levels of exposure to sexually explicit material, especially where the young are involved, yet protective of the right of adults to read, see and hear what they want. For them, the purpose of regulation is not to prohibit sexually explicit material, but to ensure that certain conditions as to content, production and distribution are enforced, in particular that the product on offer is non-violent in content, that it is produced by fully consenting adults and that its mode of distribution facilitates informed choice and minimises any risk to children.
10.60 Mr Griffith’s paper notes the longstanding complaint that prohibitions on the sale of X 18+ films in the states are widely ignored and rarely enforced, and canvasses the possibility of NSW adopting a licensing scheme:
Whether a licensing scheme would prove as effective in Sydney as in the less complex market place of Canberra, where the sale of X films is restricted to designated non-residential areas, is open to debate. What can be said, based on evidence from the ACT, is that the adult film industry in Australia is a lawful, mainstream enterprise, with a vested interest in maintaining the legitimacy and effectiveness of any regulatory scheme that permits it legal operation.
10.61 However, licensing schemes and classification requirements appear somewhat anachronistic in light of the volume of this content that is now available in most Australian homes through the internet. Unless ISPs are required to block pornography, prohibitions on the sale of pornography in retail outlets may be largely symbolic, and have little practical effect.
10.62 The ALRC therefore considers that it is most appropriate and more effective to focus regulatory efforts on restricting the access of minors to this content, by encouraging parental supervision, by promoting—and requiring content providers to promote—the use and understanding of parental locks, internet filters, and other devices, and requiring content providers to take other reasonable steps to restrict access to the content. This is a more achievable regulatory outcome than the formal classification of all pornography, and providers of adult content may be more likely to comply with an obligation to take reasonable steps to restrict access, than with laws that entirely prohibit the distribution of their content.
 Classified essentially means classified by the Classification Board or an authorised industry classifier, applying statutory classification criteria.
 Australian Law Reform Commission, National Classification Scheme Review, ALRC Discussion Paper 77 (2011), Proposal 6–4.
 See, eg, Arts Law Centre of Australia, Submission CI 2490; Interactive Games and Entertainment Association, Submission CI 2470; D Mitchell, Submission CI 2461.
 J Denham, Submission CI 2464.
 Civil Liberties Australia, Submission CI 2466.
 Australian Communications and Media Authority, Submission CI 2489.
 Confidential, Submission CI 2496.
 Prohibited content is discussed in Chs 11 and 12.
 Ch 7 recommends the introduction of authorised industry classifiers.
 Industry classifiers are discussed in Ch 7.
 See I Graham, Submission CI 2507; J Trevaskis, Submission CI 2493; Arts Law Centre of Australia, Submission CI 2490; Classification Board, Submission CI 2485; Interactive Games and Entertainment Association, Submission CI 2470; in response to the question ‘Should the new Act provide that all media content likely to be X 18+ may be classified by either the Classification Board or an authorised industry classifier?’: Australian Law Reform Commission, National Classification Scheme Review, ALRC Discussion Paper 77 (2011), Question 7–1.
FamilyVoice Australia, Submission CI 2509.
 Eg, in NSW, ‘A person must not sell or publicly exhibit a film classified RC or X 18+’: Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW) s 6.
Broadcasting Services Act 1992 (Cth) sch 7 cl 20.
 Eros Association, Submission CI 1856.
 Eg, A Hightower, Submission CI 2511; Confidential, Submission CI 2496; Civil Liberties Australia, Submission CI 2466; Eros Association, Submission CI 1856. Some submissions that argued the scope of the RC classification was too broad also suggested that sexually explicit adult content should not be prohibited: see Ch 11.
 Eg, A Hightower, Submission CI 2511; J Trevaskis, Submission CI 2493. A similar principle is also currently enshrined in the National Classification Code.
 D Henselin, Submission CI 2473.
FamilyVoice Australia, Submission CI 2509.
 Senate Legal and Constitutional Affairs References Committee, Review of the National Classification Scheme: Achieving the Right Balance (2011), Rec 13.
 See K Albury, C Lumby and A McKee, The Porn Report (2008); and M Tankard Reist and A Bray (eds), Big Porn inc.: Exposing the Harms of the Global Pornography Industry (2011).
 G Griffith, X Rated Films and the Regulation of Sexually Explicit Material (2002), 1.
 Ibid, 57.