15.21 In the Discussion Paper, the ALRC proposed that the Classification of Media Content Act should be enacted pursuant to the legislative powers of the Parliament of Australia.
15.22 This proposal was widely supported by stakeholders. Telstra, for example, considered that there is ‘adequate constitutional power’ for the Australian Parliament to enact the Classification of Media Content Act and noted that
modern media content industries are national and frequently international in nature. Differing state based classification regimes significantly increase regulatory compliance costs for industry with little consumer benefit. In this context, ensuring a consistent and certain national classification regime is important for the success of the Australian classification scheme.
15.23 Similarly, the National Association for the Visual Arts observed:
It is hard to see how different standards can be justified around a cohesive country with a small population like Australia, especially in the digital age where communication is instantaneous. These differences serve only to cause confusion, especially where state borders are simply lines on maps. This especially is the case where currently some state legislation can be used to override the decisions of the Classification Board …
15.24 Other stakeholders, including the Attorney General of Western Australia and the Victorian Government, expressed opposition to the Australian Government having sole responsibility for classification of media content and favoured the retention of aspects of the classification cooperative scheme.
15.25 The Victorian Government expressed the view that, rather than the Australian Government ‘taking full legislative and enforcement responsibility for content regulation as the solution to the existing challenges to the scheme’, reforms to the existing cooperative arrangements could ‘ameliorate many of the acknowledged problems’ with the efficient operation of the National Classification Scheme.
For example, problems associated with inconsistency across jurisdictions could be overcome through the creation of model provisions that could be adopted either through an applied laws regime or through mirror legislation. Difficulties associated with media convergence could be offset through more clearly describing and distinguishing the regulatory responsibility of Victoria and the Commonwealth and by ensuring that the regulation of online content is complementary to ‘offline’ content and applies the same standards … Furthermore, the governance and decision-making processes underpinning the NCS could be revised with a view to enhancing efficiency and cooperation between participating jurisdictions.
15.26 The Attorney General of Western Australia submitted that the classification cooperative scheme, which he considered to operate satisfactorily, ‘ought not be replaced by a centralised Commonwealth regime’. Rather, reform of the National Classification Scheme should take place within the framework of a new cooperative scheme.
15.27 Among other things, the Attorney General stated that the challenges of media convergence could be dealt ‘legislatively and administratively’ within the framework of a cooperative scheme; the need for Commonwealth, state and territory ministers to reach unanimous agreement on amendments to the Classification Code and guidelines ‘demonstrates the strength of the cooperative arrangements’ and ensures that account is taken of differing views; and inconsistencies in state and territory enforcement legislation are necessary.
15.28 Classification law needs to respond effectively to media convergence and the ensure consistent classification of content, decision making and enforcement. The ALRC recommends that the 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.
15.29 A central principle for reform is that, in an environment of converging media, classification regulation should be focused upon content rather than the means of delivery. This suggests that, as far as possible, the same rules should apply to the classification of all classifiable content—offline and online. Such a model would also be consistent with the reform principle that classification regulation should be kept to the minimum needed to achieve a clear public purpose and should be clear in its scope and application.
15.30 There are currently several regimes for classification of media content: under the classification cooperative scheme; and co-regulatory schemes for regulating television, online content and content provided by mobile carriers contained in the Broadcasting Services Act. The ALRC considers that the framework for any new scheme should unify these laws and amalgamate, as far as possible, the functions of existing agencies and departments responsible for content classification and regulation.
15.31 Given that the Australian Government is responsible for regulating online content, using the legislative powers of the Parliament of Australia is the most practical way to ensure that any new framework for the classification of publications, films and computer games aligns with the approach to regulating online content. There was considerable support expressed in submissions for the idea that the Parliament of Australia should enact new national classification laws with this coverage.
15.32 The potential scope of Commonwealth legislative power in this area is broad and likely to be sufficient to legislate for all significant aspects of a new scheme—especially as virtually all important media content will, in the future, be available on the internet or through other electronically distributed means. The Parliament of Australia is clearly able to legislate more broadly in relation to classification of media content than it has done to date.
Referral of state powers
15.33 The Discussion Paper noted that, while any gaps in Commonwealth legislative power may not be significant, and might be left to the states to regulate, such gaps could be covered by a referral of state powers to the Commonwealth under s 51(xxxvii) of the Constitution.
15.34 A state referral of powers may be stated to cover all matters relating to the operation of new Commonwealth classification legislation to the extent that the matter is not otherwise included in the legislative powers of the Parliament of the Australia. That is, if there are some areas of activity that should be covered by the new scheme, and to which Commonwealth legislative powers may not extend, such a referral of power by the states would be intended to ensure that the legislation is comprehensive in its coverage and not vulnerable to constitutional challenge.
15.35 The Senate Legal and Constitutional Affairs References Committee, in its review of the existing classification scheme in 2011, recommended that the Australian Government request ‘the referral of relevant powers by states and territories to the Australian Government to enable it to legislate for a truly national classification scheme’. However, in the event that this was not able to be negotiated before June 2012, the Senate Committee recommended that the Government ‘prepare options for the expansion of the Australian Government’s power to legislate for a new national classification scheme’.
15.36 In the Discussion Paper, the ALRC proposed that state referrals of power should be used in enacting the Classification of Media Content Act. Some stakeholders supported the idea of referral of powers, at least where reform cannot be implemented effectively using Commonwealth legislative powers alone. Free TV Australia, for example, stated that referrals might ‘deal with the problematic inconsistencies that currently exist between Commonwealth and State legislation’.
15.37 In the ALRC’s view, it is unnecessary for the Australian Government to seek referral of powers because the Commonwealth’s legislative powers are sufficient to enact the Classification of Media Content Act.
15.38 In summary, the Australian Parliament has power to enact legislation for the classification of media content and the enforcement of classification decisions where content is being sold, screened, provided online or otherwise distributed:
- using a communication service;
- by a foreign or Australian trading or financial corporation; or
- in a territory.
15.39 Commonwealth legislative power would also reach content:
- imported into, or exported from, Australia, or dealt with in the course of trade and commerce between states, between a state and a territory, or between territories; or
- that may be classified Prohibited because it is obscene or advocates a terrorist act.
15.40 The Discussion Paper noted that it might be ‘problematic’ to apply Commonwealth classification laws to material sold and distributed only within one state. However, this limitation in the coverage of a Commonwealth-only scheme would only apply where the activities do not involve:
- a foreign or Australian trading or financial corporation;
- a communications service; or
- content that is Prohibited because it is obscene or advocates terrorism.
15.41 This limitation in the reach of the Classification of Media Content Act does not appear critical to the success of the overall regime, in particular considering the centrality of communications services (that is, the internet and other communications networks) to content provision.
 Australian Law Reform Commission, National Classification Scheme Review, ALRC Discussion Paper 77 (2011), Proposal 13–1.
 Free TV Australia, Submission CI 2519; Arts Law Centre of Australia, Submission CI 2490; Foxtel, Submission CI 2487; S Ailwood, Submission CI 2486; New South Wales Council for Civil Liberties, Submission CI 2481; National Association for the Visual Arts, Submission CI 2471; Interactive Games and Entertainment Association, Submission CI 2470; Telstra, Submission CI 2469.
 Telstra, Submission CI 2469.
 National Association for the Visual Arts, Submission CI 2471.
 Victorian Government, Submission CI 2526; FamilyVoice Australia, Submission CI 2509; Collective Shout, Submission CI 2450; Attorney General of Western Australia, Submission CI 2465.
 Victorian Government, Submission CI 2526.
 Attorney General of Western Australia, Submission CI 2465.
 See Ch 4, Principle 8.
Australian Constitution s 51(xxxvii) gives the Parliament of Australia power to make laws with respect to matters referred to the Parliament by the Parliament of any state. The states have referred a number of matters to the Commonwealth including, for example, corporations law and counter-terrorism: Corporations Act 2001 (Cth) s 3; Criminal Code (Cth) s 100.3.
 See, eg, Corporations (Commonwealth Powers) Act 2001 (NSW) and cognate state and territory legislation; Corporations Act 2001 (Cth) s 3.
 Senate Legal and Constitutional Affairs References Committee, Review of the National Classification Scheme: Achieving the Right Balance (2011), Rec 10.
 Ibid, Rec 11.
 Australian Law Reform Commission, National Classification Scheme Review, ALRC Discussion Paper 77 (2011), Proposal 13–2.
 Arts Law Centre of Australia, Submission CI 2490; Watch On Censorship, Submission CI 2472; Interactive Games and Entertainment Association, Submission CI 2470; Telstra, Submission CI 2469; Free TV Australia, Submission CI 2452.
 Free TV Australia, Submission CI 2452.