Commonwealth legislative powers

15.18 A threshold question concerning a National Classification Scheme centred on a Classification of Media Content Act, is the extent to which the Parliament of Australia has legislative power to enact legislation establishing such a framework.

15.19 The Parliament of Australia has power to make classification laws with respect to content:

  • imported into, or exported from, Australia or dealt with in the course of interstate trade—relying on s 51(i) of the Constitution (the trade and commerce power);[15]
  • sold, screened or distributed online or sent through the post—relying on s 51(v) of the Constitution (the communications power);[16]
  • advocating the doing of a terrorist act—relying on s 51(vi) of the Constitution (the defence power);[17]
  • sold, screened, provided online or otherwise distributed by foreign or trading corporations—relying on s 51(xx) of the Constitution (the ‘corporations’ power);[18] and
  • sold, screened, provided online or otherwise distributed in the territories—relying on s 122 of the Constitution (the ‘territories’ power).[19]

15.20 The external affairs power contained in s 51(xxix) of the Constitution may also be invoked, for example, with respect to:

  • restrictions on child pornography—recognising Australia’s international obligations under the United Nations Convention on the Rights of the Child;[20]
  • constraints on freedom of expression—recognising Australia’s international obligations under the International Covenant on Civil and Political Rights;[21] and
  • suppression of obscene publications—recognising Australia’s international obligations under the Convention for the Suppression of the Circulation and Traffic in Obscene Publications.[22]

[15] For example, Customs Act 1901 (Cth) s 233BAB.

[16] This is one constitutional basis for schs 5 and 7 of the Broadcasting Services Act.

[17]Classification (Publications, Films and Computer Games) Act 1995 (Cth) s 9A.

[18] For example, the Broadcasting Services Act relies on the corporations power to provide an additional constitutional basis for rules about the disclosure of cross-media relationships: Broadcasting Services Act 1992 (Cth) s 52A.

[19] This is the constitutional basis of the Classification (Publications, Films and Computer Games) Act 1995 (Cth).

[20]Convention on the Rights of the Child, 20 November 1989, [1991] ATS 4 (entered into force on 2 September 1990), art 19.

[21]International Covenant on Civil and Political Rights, 16 December 1966, [1980] ATS 23 (entered into force on 23 March 1976), art 19.

[22]Convention for the Suppression of the Circulation and Traffic in Obscene Publications, 12 September 1923, [1935] ATS 19 (entered into force 7 August 1924) as varied by the Protocol to amend the Convention for the Suppression of the Circulation of and Traffic in Obscene Publications, 12 November 1947, [1947] ATS 16 (entered into force 12 November 1947).