Inconsistency of Commonwealth and state laws

15.42 Where the power to legislate is held concurrently by the Commonwealth and the states, as it is under most of the heads of power on which a Classification of Media Content Act would rely, questions involving inconsistency of laws may arise.

15.43 Section 109 of the Constitution provides that when ‘a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall to the extent of the inconsistency, be invalid’.

15.44 Schedules 5 and 7 of the Broadcasting Services Act expressly provide for concurrent operation of state and territory laws. Both schedules state that it is the intention of the Parliament that the schedules are ‘not to apply to the exclusion of a law of a State or Territory to the extent to which that law is capable of operating concurrently’.^[40]

15.45 As state and territory law is not excluded by schs 5 and 7 of the Broadcasting Services Act, the states and territories ‘are free to enact laws imposing additional classification obligations leaving open the prospect of costly and inefficient jurisdictional inconsistencies being imposed on the providers of online content in Australia’.^[41]

15.46 As discussed above, a number of states have concurrent classification powers with respect to publications, films and computer games also covered by the Commonwealth Classification Act.^[42]

15.47 In the Discussion Paper, the ALRC suggested that the Classification of Media Content Act should be drafted so that state legislation allowing for the classification or re-classification of media content under existing concurrent powers would be inoperative. However, some stakeholders favoured the retention of these concurrent powers.^[43] FamilyVoice, for example, stated that there was:

A legitimate role for ‘competitive federalism’ in which an individual state (or territory) may opt for stricter laws in response to perceived community attitudes in that jurisdiction.^[44]

15.48 Telstra stated that it welcomed the suggestion that the Classification of Media Content Act should ‘cover the field’ and noted that ‘the absence of such a statement with respect to online content regulation under the Broadcasting Services Act is a source of unnecessary regulatory uncertainty for online content providers’.^[45]

15.49 In the ALRC’s view, the Classification of Media Content Act should be drafted to ‘cover the field’ in constitutional terms. That is, the Act should contain an express intention that it is to be exclusive within its field, so that any state legislation operating in the same field ceases to operate, pursuant to s 109 of the Constitution. This would mean that, for example, state legislation allowing for the classification or re-classification of media content under existing concurrent powers would be inoperative.

15.50 A ‘cover the field’ provision would need to be drafted carefully to ensure it is not overly broad and is targeted—for example, to cover laws with respect to the ‘classification of media content and the enforcement of such classification decisions’.

15.51 There are many state and territory laws which deal with the distribution of content, which it is not intended that the new Act displace. These include criminal laws (other than those contained in state and territory classification enforcement legislation)—for example, those prohibiting the distribution of child pornography.

15.52 A number of complexities will arise in considering the desirable application of a ‘cover the field’ provision. For example, as discussed in Chapter 16, some state and territory enforcement legislation contains provisions dealing with the regulation of online content, making it an offence to upload certain types of content.

15.53 The Classification (Publications, Films and Computer Games) (Enforcement Act) 1995 (Vic) provides that a person must not use an ‘on-line information service to publish or transmit, or make available for transmission’ certain types of material, including ‘objectionable material’ and ‘material unsuitable for minors’.^[46] ‘Objectionable material’ and ‘material unsuitable for minors’ are defined, only in part, by reference to classification categories.^[47]

15.54 The Classification of Media Content Act would make it an offence to upload Prohibited content. The extent to which such a provision in Commonwealth legislation would (or should) invalidate the Victorian provision, or similar state or territory offences remains to be resolved.