6.79 Certain content should continue to be exempt from requirements to be classified. The new Act should contain a definition of ‘exempt content’ drawn from the existing exemptions in the Classification Act, the Broadcasting Services Act 1992 (Cth), and television codes. This exempt content would include, for example:

  • news and current affairs programs;
  • sporting events;
  • recordings of live performances; and
  • educational computer games.

6.80 Some of this content may not be caught by the ALRC’s proposed definition of content that must be classified. For example, films and computer games ‘for training, instruction or reference’ are perhaps unlikely to have a significant Australian audience. The content may therefore not need to be explicitly exempted, but the new Act could keep these exemptions in any event, for the sake of clarity.

6.81 Although in the ALRC’s model, this content would not need to be classified, it should still be restricted to adults if it is likely to be R 18+ or X 18+.[69] This safeguard should largely obviate the need to exclude higher level content from the definition of exempt content.[70] A recording of a live performance that is likely to be R 18+, for example, would still need to be restricted to adults, even though it may not need to be classified.

6.82 If access restrictions on adult content are in place (see Chapter 10), then more content can be exempted from classification requirements. In the ALRC’s view, the definition of exempt content in the new Act should be expanded to capture films and computer games shown at:

  • film and computer game festivals; and
  • art galleries and other cultural institutions.[71]

6.83 This should replace the formal, and reportedly cumbersome, exemption arrangement, under which film festivals and cultural institutions currently apply to the Director of the Board to have content exempted from classification requirements.[72]

6.84 The National Association for the Visual Arts (NAVA) submitted that it ‘strongly supports’ the exemption for content shown at festivals, art galleries and other cultural institutions. ‘This is a positive move towards supporting Australia’s innovative and creative practitioners and their rights to freedom of expression’.[73]

6.85 The Arts Law Centre supported the proposal in the Discussion Paper, pointing to the role played by film festivals, art galleries and other cultural institutions in ‘creating a space to show unconventional and challenging content’.[74] The Arts Law Centre also said that an explicit exemption would recognise the ‘already widespread self-regulation by galleries and cultural institutions notifying visitors of content so that individuals may decide for themselves and their children whether or not to view it’.[75] Similarly, the Australia Council for the Arts also submitted that in the ‘vast majority of cases our galleries and cultural institutions already present films responsibly, with appropriate measures in place to inform the public about work that contains potentially offensive material’.[76]

6.86 However, NAVA also noted that ‘artistic work is no longer only made available to the public within gallery spaces but is exhibited in a wider range of contexts and locations’—including on the internet. NAVA therefore recommended that ‘the work of all professional artists should be exempt, regardless of the context in which it is brought to the public’.[77] The ALRC sees no need for such a blanket exemption for artists. Many popular films, computer games and television programs that Australians would expect to be classified are no doubt made by artists, and should not be exempted from classification laws on this ground. Distinguishing between artists and other content producers would also be difficult to apply in practice.

Recommendation 6–3 The Classification of Media Content Act should provide a definition of ‘exempt content’ that captures all media content that is exempt from the laws relating to what must be classified. The definition of exempt content should capture the traditional exemptions, such as for news and current affairs programs. The definition should also provide that films and computer games shown at film festivals, art galleries and other cultural institutions are exempt. Providers of this content should not be exempt from obligations to take reasonable steps to restrict access to adult content.

[69] See Ch 10.

[70] The Classification Act now provides that films and computer games are not exempt if they are likely to be classified M or higher: Classification (Publications, Films and Computer Games) Act 1995 (Cth) s 5B(3).

[71] For example, National Film and Sound Archive of Australia, Submission CI 1198.

[72] For example, Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW) s 51.

[73] National Association for the Visual Arts, Submission CI 2471.

[74] Arts Law Centre of Australia, Submission CI 2490.

[75] Ibid.

[76] Australia Council for the Arts, Submission CI 2508.

[77] National Association for the Visual Arts, Submission CI 2471.