Functions of the Regulator

14.52 The Regulator’s functions should be based upon functions that are currently performed by the AGD in administering the classification scheme for publications, films and computer games; and the ACMA, in relation to online and mobile content and broadcast television.

14.53 In addition, while the Classification Board would be retained, some of its present functions, in a new form, would be conducted by the Regulator. These functions include the equivalent of the present powers for the Director of the Classification Board to require content to be submitted for classification—the ‘call in’ power[46] and to authorise industry assessors and approve training for assessors.[47]

14.54 The Regulator would also have functions necessary for the operation of the scheme, which do not currently have equivalents. These would include functions relating to the enforcement of classification laws that are currently the responsibility of state and territory agencies.[48] The recommended functions of the Regulator are summarised below.

Enforcement of classification laws

14.55 The ALRC recommends that the new Classification of Media Content Act should provide for enforcement of classification laws under Commonwealth law.[49] The Regulator should generally exercise these powers—just as the ACMA is currently empowered to respond to breaches of the Broadcasting Services Act[50]—by taking administrative action, civil action, or referring matters to the Commonwealth Director of Public Prosecutions for the prosecution of a criminal offence. The possible regime of offences and penalties that might apply under the new Act, and the continuing role state and territory law enforcement agencies, is discussed in Chapter 16.

14.56 In exercising its enforcement powers, including in relation to ensuring compliance with co-regulatory industry codes, the ACMA is guided by statutory objects and statements of regulatory policy set out in the Broadcasting Services Act, and by its own enforcement guidelines.

14.57 The new Classification of Media Content Act should also provide for the issuing by the Regulator of enforcement guidelines[51] and for the administration of a classification decisions database.[52]

Complaint handling

14.58 The Regulator should be empowered to handle and resolve complaints about the operation of the new National Classification Scheme.

14.59 In this context, a distinction needs to be made between complaints about classification decisions, and other complaints about the operation of the scheme. In the case of complaints about classification decisions, complaints should be directed, in the first instance, to the decision-making body or content provider. Additionally, an applicant for classification, the Minister or an aggrieved person may seek review of the classification decision. These processes, and related reforms, are discussed in Chapter 7.

14.60 Under the new scheme complaints may also be made about, for example, non-compliance with obligations to: classify content that should be classified; take reasonable steps to restrict access to adult content; or mark content. Industry codes may deal with a wide range of matters and also become the subject of complaints.

Industry complaint handling

14.61 In the Discussion Paper, the ALRC asked how the complaints handling function of the Regulator should be framed in the new Classification of Media Content Act and, in particular, whether complaints should be able to be made directly to the Regulator (for resolution) where an industry complaints handling scheme exists.[53]

14.62 Under the Broadcasting Services Act, complaints about matters covered by an industry code must be made to the relevant content provider in the first instance. If a person does not receive a response within 60 days, or receives a response but considers it to be inadequate, a complaint about that matter can be made to the ACMA.

14.63 In the Senate Legal and Constitutional Affairs References Committee review of the classification system (the Senate Committee review),[54] suggestions were made that complaints about online content should be able to be made directly to the ACMA. In response, the ACMA observed that requiring all complaints to be made directly to it—rather than to a content provider, such as a broadcaster, in the first instance—would not be in keeping with co-regulation under the Broadcasting Services Act. The ACMA also expressed concern about the effect such a change would have on its workload.[55]

14.64 Stakeholders generally agreed that complaints should not generally be made directly to the Regulator where there is an industry complaints-handling mechanism.[56] Foxtel, for example, stated that ‘industry complaints-handling results in quicker outcomes for subscribers, and is more efficient for both industry and government’.[57] FamilyVoice Australian observed that there is ‘some merit in having complaints submitted first to the media content provider as some complaints may be resolved quickly in this way’.[58]

14.65 In this context, the Internet Industry Association Code of Practice has developed well-established co-regulatory frameworks for dealing with complaints handling, take-down notices, promoting family friendly filters, and implementing restricted access systems for some content services. In doing so, the Code has obviated the need for the ACMA to issue access-prevention notices under sch 5 of the Broadcasting Services Act, thereby effectively addressing public concerns about prohibited content at the content service provider level, rather than requiring ongoing ACMA investigations.

14.66 The Interactive Games and Entertainment Association supported the view that ‘those responsible for classifying content should be able to initially handle complaints about the classification decision, with the Regulator intervening when necessary’, but observed:

This approach is largely dependent on the ease with which consumers are able to identify the entity who is responsible for classifying the particular content. If there is likely to be any difficulty in identifying responsible entities, it would be ideal to have a classification ‘clearing house’ to direct concerned consumers to responsible entities.[59]

Regulator coordination role

14.67 The Senate Committee review also recommended the establishment of a classification complaints ‘clearinghouse’, where complaints in relation to classification can be directed and that would be ‘responsible for forwarding them to the appropriate body for consideration’.[60]

14.68 Some stakeholders supported the idea that the Regulator should perform a coordination role with respect to complaints.[61] The Classification Board noted the importance of one ‘port of call’ for all complaints:

As such, the role of the Regulator as a complaints clearing house that could process complaints expeditiously and refer them correctly, with an accompanying ability to ‘triage’ complaints according to level of seriousness—such as those about online child sexual abuse material, or those complaints that raise systemic issues concerning the operation of industry classification arrangements—would appear to have merit.[62]

14.69 Similarly, the Motion Picture Distributors Association of Australia recommended that ‘for pragmatic reasons’ the Regulator should be the ‘first point of contact’ for complaints about the classification of films, trailers and advertising material for theatrical release.[63] Under the ALRC’s recommendations, feature films for cinema release are to be classified by the Classification Board, in which case complaints about these decisions should be directed to the Classification Board initially. In practice, responses might involve advising the complainant about the process for review of classification decisions.

14.70 The ALRC considers that the starting point should be that complaints about matters under the Classification of Media Content should be resolved by the Regulator only where they have not been handled satisfactorily by content providers or industry complaints-handling bodies. This accords with best practice in complaint-handling mechanisms, where complaints are dealt with as closely as possible to the point of origin, and helps to ensure that the Regulator will deal only with the complaints that are most difficult to resolve or that raise systemic issues.

14.71 However, in some cases, it may be difficult for consumers to know where to complain. While the new scheme will simplify the current framework, there will still be a Regulator, a separately established Classification Board and multiple industry bodies that may handle complaints pursuant to industry classification codes or self-regulatory arrangements, such as those operated by the Australian Association of National Advertisers.

14.72 For this reason it is important that the Regulator be able to act as a first point of contact for complaints, even if most complaints are referred to content providers or industry bodies for resolution. A consumer ‘should not be required to have a detailed knowledge of the classification system, along with the role of the various bodies involved in classification and their associated responsibilities’.[64]

14.73 As an adjunct to its complaints-handling functions, the Regulator might usefully perform the sort of central coordination role suggested by the Senate Committee. This might involve, for example, running a classification ‘hotline’ or internet portal for the lodgement of complaints. For example, one stakeholder noted:

Complaints will be particularly troublesome for overseas online content providers. It is even more unreasonable to expect an ISP to deal with such a complaint but obviously the content provider will not have a complaints-handling scheme in place. It seems likely that the Regulator will remain the destination for such complaints.[65]

Discretion not to investigate

14.74 Another issue related to complaint handling concerns the discretion of the Regulator to decline to investigate complaints. Under schs 5 and 7 of the Broadcasting Services Act, the ACMA must investigate a complaint, unless it is satisfied that a complaint is frivolous, vexatious or not made in good faith.[66]

14.75 The ACMA has noted that:

It is unusual for the ACMA to decide not to investigate a complaint on these grounds and determining whether a matter is frivolous, vexatious or not made in good faith can be resource-intensive in itself. The ACMA does not have any other discretion not to investigate a valid complaint.[67]

14.76 In 2010–11, the ACMA received 4,865 complaints about online content, leading to investigations into 6,587 items of online content, which was a 72% increase in the number of online investigations compared to 2009–10. Of these, 1,957 investigations identified prohibited or potentially prohibited content, or 29.7% of total investigations. In other words, about 70% of the total items investigated were not in breach of the law, which was an increase from 50% of the items in 2009–10.[68]

14.77 In the Discussion Paper, the ALRC asked what discretion the Regulator should have to decline to investigate complaints.[69] A number of stakeholders suggested that such a discretion should be framed broadly.[70] Free TV Australia, for example, submitted that the current rules which apply to the ACMA ‘are overly prescriptive and give rise to absurd investigations’ because the ACMA is obliged to investigate all complaints:

If the Regulator has the power to prioritise certain complaints, serious or systemic complaints can be dealt with in a timely manner and frivolous or minor complaints can be declined.[71]

14.78 The discretion of other Australian Government regulators is not similarly constrained.[72] The discretion of the ACMA to decline to investigate complaints under other legislation is also broader than under the Broadcasting Services Act. For example, under the Telecommunications Act 1997 (Cth), the ACMA ‘may’ investigate complaints about contraventions of the Do Not Call Register Act 2006 (Cth) and Spam Act 2003 (Cth). The ACMA’s discretion to decline to investigate is unconstrained.[73]

14.79 In the ALRC’s view, the Regulator should be granted broad discretion to determine how best to respond to complaints. Given its wide responsibilities and finite resources, it is critical that the Regulator be able to prioritise the investigation of complaints. For example, the Regulator may choose to focus on investigating the most serious complaints about content, such as those about online child sexual abuse material, or those complaints that raise systemic issues concerning the operation of industry classification arrangements.

Authorising industry classifiers

14.80 The ALRC recommends that some media content should be able to be classified by authorised industry classifiers.[74] The ALRC recommends that the Regulator have a number of important roles in relation to industry classification, including authorising industry classifiers who have completed training approved by the Regulator.

14.81 At present, the Director of the Classification Board is empowered to authorise and revoke the authorisation of industry assessors (the equivalent of industry classifiers under the new scheme).[75] The ALRC recommends that the Regulator should undertake these functions. The Regulator should have powers necessary to maintain the integrity of industry classification decisions and to deal with misconduct or incompetence by industry classifiers. Removing this function from the Classification Board would mean that the Board would be more able to focus on its role as a classification decision maker.

14.82 The ALRC also recommends that the Regulator authorise industry-developed classification instruments—such as online, interactive questionnaires—as suitable for use in making classification decisions.[76]

Classification training

14.83 Under existing arrangements, the AGD provides classification training to members of the Classification Board and the Classification Review Board, industry assessors and staff of other government agencies, including the ACMA and Customs.[77]

14.84 Consistency in training is essential for an acceptance by the community of an expanded role for industry classifiers. The ALRC recommends that, under the new scheme, the Regulator should provide classification training. The Regulator should also be empowered to accredit other media content classification professionals or related organisations to deliver training developed and approved by the Regulator, should the need arise. Classification training is discussed in Chapter 7.

Industry classification codes

14.85 The ALRC recommends that the Classification of Media Content Act should provide for the development and operation of industry codes.[78] The Regulator would promote and facilitate industry classification of media content under codes and, in relation to some codes, enforce compliance.

14.86 As discussed in Chapter 13, the Regulator would be responsible for overseeing the development of, and approving, industry codes. The Regulator should also be empowered to approve any variations of the codes, revoke any of its approvals if required, and maintain a register of such codes—similar to the role currently played by the ACMA in relation to broadcasting and internet codes.

14.87 Where an industry classification code of practice relates to media content that must be classified, the Regulator should have power to enforce compliance with the code against any participant in the relevant part of the media content industry.[79]

Liaison

14.88 The Regulator should liaise with relevant Australian and overseas media content regulators and law enforcement agencies. For example, under the Classification of Media Content Act, the Regulator would have an obligation to liaise with law enforcement agencies where media content may contain child sexual abuse material, or other illegal content.[80] The ACMA currently liaises with regulatory and law enforcement bodies overseas with the aim of developing cooperative arrangements for preventing and reporting child abuse material that is online.[81]

Other functions

14.89 The Regulator might have a number of other functions, although these might also be performed by the department responsible for the new National Classification Scheme. These other functions include:

  • providing administrative support to the Classification Board, including in relation to the recruitment and training of Board members;

  • assisting with the development of classification policy and legislation, and advising on matters related to the new National Classification Scheme;

  • conducting or commissioning research relevant to classification; and

  • educating the Australian public about the new National Classification Scheme and promoting media literacy more generally, for example, providing information on appropriate consumer tools such as content filters.

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.

[46]Classification (Publications, Films and Computer Games) Act 1995 (Cth) ss 23(3), 23A(3), 24(3).

[47] Ibid pt 2 div 2A.

[48] See Ch 16.

[49] See Ch 16.

[50] Australian Communications and Media Authority, Guidelines Relating to the ACMA’s Enforcement Powers Under the Broadcasting Services Act 1992 (Cth) (2011) cl 5.2.

[51] See Ch 16.

[52] See Ch 7.

[53] Australian Law Reform Commission, National Classification Scheme Review, ALRC Discussion Paper 77 (2011), Question 12–1.

[54] Senate Legal and Constitutional Affairs References Committee, Review of the National Classification Scheme: Achieving the Right Balance (2011).

[55] Australian Communications and Media Authority, Responses to Questions Taken on Notice, Senate Legal and Constitutional References Committee Hearing 27 April 2011, 13 May 2011.

[56] See, eg, Free TV Australia, Submission CI 2519; FamilyVoice Australia, Submission CI 2509; Arts Law Centre of Australia, Submission CI 2490; Foxtel, Submission CI 2487; Interactive Games and Entertainment Association, Submission CI 2470; Telstra, Submission CI 2469. In contrast, Collective Shout was critical of existing self-regulatory complaint-handling and submitted that ‘the first point of contact for complaints should be a regulatory body with the requisite powers to enforce meaningful penalties for breaches of community standards in a timely manner’: Collective Shout, Submission CI 2477. See also Australian Council on Children and the Media, Submission CI 2495.

[57] Foxtel, Submission CI 2487.

[58] FamilyVoice Australia, Submission CI 2509.

[59] Interactive Games and Entertainment Association, Submission CI 2470.

[60] Senate Legal and Constitutional Affairs References Committee, Review of the National Classification Scheme: Achieving the Right Balance (2011), Rec 29.

[61] Motion Picture Distributors Association of Australia, Submission CI 2513; J Trevaskis, Submission CI 2493; Classification Board, Submission CI 2485.

[62] Classification Board, Submission CI 2485.

[63] Motion Picture Distributors Association of Australia, Submission CI 2513.

[64] Senate Legal and Constitutional Affairs References Committee, Review of the National Classification Scheme: Achieving the Right Balance (2011), [12.71].

[65] J Trevaskis, Submission CI 2493.

[66]Broadcasting Services Act 1992 (Cth) sch 5 cl 26(2)(a); sch 7 cl 43(3)(a). The ACMA may also decline to investigate a complaint if it has reason to believe that the complaint was made for the purpose of frustrating or undermining the effective administration of the schedules: Broadcasting Services Act 1992 (Cth) sch 5 cl 26(2)(b); sch 7 cl 43(3)(b).

[67] Australian Communications and Media Authority, Responses to Questions Taken on Notice, Senate Legal and Constitutional References Committee Hearing 27 April 2011, 13 May 2011.

[68] Australian Communications and Media Authority, Annual Report 2010–11, 112–113.

[69] Australian Law Reform Commission, National Classification Scheme Review, ALRC Discussion Paper 77 (2011), Question 12–1.

[70] Free TV Australia, Submission CI 2519; Foxtel, Submission CI 2487; Interactive Games and Entertainment Association, Submission CI 2470; Telstra, Submission CI 2469.

[71] Free TV Australia, Submission CI 2519.

[72] For example, the Australian Securities and Investments Commission ‘may make such investigation as it thinks expedient’: Australian Securities and Investments Commission Act 2001 (Cth) s 13; and the Ombudsman may decline to investigate a complaint where it considers that ‘the complainant does not have a sufficient interest in the subject matter of the complaint’ or ‘an investigation, or further investigation, of the action is not warranted having regard to all the circumstances’: Ombudsman Act 1976 (Cth) s 6(1)(b)(ii)–(iii).

[73]Telecommunications Act 1997 (Cth) s 510(1). However, the ACMA must investigate if requested by the Minister: Telecommunications Act 1997 (Cth) s 510(3).

[74] See Ch 7.

[75]Classification (Publications, Films and Computer Games) Act 1995 (Cth) pt 2 div 2A.

[76] See Ch 7.

[77] Australian Government Attorney-General’s Department, Submission to Senate Legal and Constitutional Affairs References Committee Inquiry into the Australian Film and Literature Classification Scheme, 4 March 2011.

[78] See Ch 13.

[79] See Ch 13.

[80] For example, under the Broadcasting Services Act, ACMA has an obligation to notify law enforcement agencies where Australian-hosted prohibited or potential prohibited content is also considered to be sufficiently serious: Broadcasting Services Act 1992 (Cth) sch 7 cl 69.

[81] See Australian Communications and Media Authority, Working Together to Fight Online Child Abuse Material <http://www.acma.gov.au/scripts/nc.dll?WEB/STANDARD/1001/pc=PC_90166> at 11 September 2011.