The classification cooperative scheme

15.8 As explained in Chapter 2, the classification cooperative scheme is based on the Classification (Publications, Films and Computer Games) Act 1995 (Cth) (Classification Act) and complementary state and territory enforcement legislation and is underpinned by the Intergovernmental Agreement on Censorship (the Intergovernmental Agreement).

15.9 The Classification Act was enacted by the Parliament of Australia to provide for the classification of publications, films and computer games for the ACT, pursuant to its power to make laws for the government of a territory (the territories power).[1] The Classification Act specifically provides that it is intended to form part of a Commonwealth, state and territory scheme for classification and the enforcement of classifications.[2]

15.10 The Classification Act itself provides that Commonwealth, state and territory ministers must agree to any amendment to the National Classification Code and on classification guidelines or amendments to those guidelines.[3] The Intergovernmental Agreement, under which the scheme is established and maintained, may be amended only by unanimous agreement of the Commonwealth, states and territories.[4]

State and territory classification powers

15.11 Some states and territories retain powers to classify or reclassify material.[5] Four jurisdictions—Queensland, South Australia, Tasmania and the Northern Territory—have legislated concurrent classification powers.[6]

15.12 For example, under the Classification of Computer Games and Images Act 1995 (Qld), a classification officer has the power to classify computer games that have yet to be classified under the Classification Act.[7] Further, if a computer game is classified under the Queensland Act and is subsequently also classified by the Classification Board under the Classification Act, the Queensland Act provides that the Commonwealth classification decision has no effect in Queensland.[8]

15.13 Three jurisdictions also reserve the power to reclassify publications, films and computer games already classified by the Classification Board.[9] For example, in South Australia, the South Australian Classification Council may make classification decisions with respect to publications, films or computer games that prevail, in South Australia, over any inconsistent decisions made under the Commonwealth Classification Act.[10]

15.14 While the classification criteria used by the South Australian Classification Council are identical to those applied by the Classification Board, the Council’s Annual Report notes that ‘there may still be a difference between the two bodies because the Council is comprised of South Australian residents and endeavours to consider the standards accepted by the South Australian community in particular’.[11]

15.15 In other jurisdictions, any divergence from a classification decision made under the classification cooperative scheme would require amendment to state or territory legislation and, arguably, breach the Intergovernmental Agreement.[12] It has been observed that

Such action would seem to be rather drastic for the occasional controversial classification decision. However, although State and Territory jurisdictions may find it difficult or burdensome to overturn a decision, it is still possible for State authorities to choose not to prosecute offences related to banned works.[13]

15.16 Under the classification cooperative scheme, the enforcement of classification laws is primarily the responsibility of states and territories. The Classification Act itself states that ‘provisions dealing with the consequences of not having material classified and the enforcement of classification decisions are to be found in complementary laws of the States and Territories’.[14]

15.17 As discussed in Chapter 16, state and territory enforcement legislation provides for a range of offences, which vary markedly between jurisdictions. Penalties for similar offences also differ.

[1] Australian Constitution s 122.

[2] Classification (Publications, Films and Computer Games) Act 1995 (Cth) s 3.

[3] Ibid ss 6, 12.

[4] Agreement Between the Commonwealth of Australia, the States and Territories Relating to a Revised Co-operative Legislative Scheme for Censorship in Australia (1995), cl 3(2). A party may withdraw from the agreement by one month’s notice in writing: Agreement Between the Commonwealth of Australia, the States and Territories Relating to a Revised Co-operative Legislative Scheme for Censorship in Australia (1995), cl 3(3).

[5] In addition, a state or territory minister is entitled to require the Commonwealth Minister to apply to the Classification Review Board for a review of a decision: Classification (Publications, Films and Computer Games) Act 1995 (Cth) s 42.

[6] Classification of Publications Act 1991 (Qld) s 9; Classification of Films Act 1991 (Qld) s 25CA; Classification of Computer Games and Images Act 1995 (Qld) s 5; Classification (Publications, Films and Computer Games) Act 1995 (SA) s 16; Classification (Publications, Films and Computer Games) Enforcement Act 1995 (Tas) s 41A; Classification of Publications, Films and Computer Games Act 1985 (NT) s 16.

[7] Classification of Computer Games and Images Act 1995 (Qld) s 5.

[8] Ibid s 4(2). No inconsistency with a law of the Commonwealth arises, in terms of s 109 of the Constitution (discussed below), because the Classification Board decision may only have effect in Queensland through the operation of the Queensland Act itself.

[9] Classification (Publications, Films and Computer Games) Act 1995 (SA) s 17; Classification (Publications, Films and Computer Games) Enforcement Act 1995 (Tas) s 41A; Classification of Publications, Films and Computer Games Act 1985 (NT) s 16.

[10] Classification (Publications, Films and Computer Games) Act 1995 (SA) ss 16, 17. In 2005, the South Australian Classification Council reclassified the film, 9 Songs, as X 18+, after it had received an R 18+ classification from the Classification Board: South Australian Classification Council, Annual Report 2005–06, 3. More recently, the Council reclassified a DVD version of the film, A Serbian Film, as RC, after it had received an R 18+ rating from the Classification Board.

[11] South Australian Classification Council, Annual Report 2008–09, 2.

[12] M Ramaraj Dunstan, ‘Australia’s National Classification System for Publications, Films and Computer Games: Its Operation and Potential Susceptibility to Political Influence in Classification Decisions’ (2009) 37 Federal Law Review 133, 143.

[13] Ibid, 143.

[14] Classification (Publications, Films and Computer Games) Act 1995 (Cth) s 3.