7.37 Having regard to the factors discussed above, the ALRC recommends that industry classifiers be empowered to classify a larger range of media content. However, the ALRC has also identified a subset of content that should be classified by the Board.
7.38 Although the ALRC recommends that a narrow range of content be subject to mandatory classification requirements—and an even smaller segment of that content must be classified by the Board—the ALRC considers that the Board should have the power to classify any media content that is submitted for classification, on receipt of a valid application.
7.39 In addition, the Board should continue to be responsible for content that is submitted for classification for the purpose of enforcing classification laws, including those concerning prohibited content. This might include applications for classification submitted by the Regulator and law enforcement authorities, such as Customs or state and territory police.
7.40 As the benchmark decision maker, the ALRC considers that all Board classification decisions should carry over to the same content whether it is later distributed on DVD, provided as a digital download or screened on television—except where content is modified.
Regulator to determine
7.41 In the interests of establishing a classification scheme that is responsive to community needs and better able to adapt to technological advances and new forms of media content, the ALRC recommends that the Regulator be provided with the power to determine what content must be classified by the Board. For certainty and clarity about the content that must be classified by the Board, the determination would take the form of a legislative instrument.
7.42 This approach recognises that the content that must be classified by the Board may be subject to change, especially in a technology-driven media content environment. It is therefore prudent to accommodate this fluidity rather than ‘fix’ requirements for Board classification in the new Act.
Exercise of the power
7.43 The new Act should set out the matters the Regulator should have regard to in determining what content must be classified by the Board. As discussed above, there are several notable considerations that are important for informing decisions about what content should be the responsibility of the Board to classify.
7.44 The Board’s greatest value, relative to industry classifiers, lies in its role in providing an independent benchmark for classification standards and decisions. In line with the principle that communications and media services available to Australians should broadly reflect community standards, the independent Board, whose members are intended to be broadly representative of the Australian community, is suited to a benchmarking role.
7.45 Benchmarked standards are far more important under a scheme that allows for more content to be classified directly by industry. As an independent body, the Board’s decisions should be objective and free of self-interest—it operates in the public interest. Hence there is a high level of confidence in the Board’s decisions. Under the ALRC model, the benchmarking benefit is amplified as Board decisions must carry over to the same content subsequently delivered on other platforms.
7.46 In the ALRC’s view, the new scheme should take full advantage of these unique features of the Board. Therefore, the Board should have a role in classifying mainstream media content that has potential for significant reach across Australian audiences. This should also include content that might raise particular concerns in the community. For example, new forms of content that provide for significantly different or unusual viewer/player experiences may warrant scrutiny by the Board until their particular effects are better understood and public concerns have been allayed. The Regulator might also be guided by the content classified by independent bodies in other jurisdictions.
7.47 To maintain the experience expected of a benchmark decision maker, the Board should routinely make classification decisions across different forms of media content and the range of classification categories. However, there are practical limitations—including what constitutes a manageable volume of content that would allow the Board to make timely decisions at a reasonable cost.
7.48 The Regulator should also consider each industry’s track record of classification decision-making and the quality of its classification processes. This should act as an incentive to industry to make sound classification decisions.
Recommendation 7–1 The Classification of Media Content Act should enable the Regulator to determine, of the content that must be classified, what content must be classified by the Classification Board. The determination should be set out in a legislative instrument.
Recommendation 7–2 The Classification of Media Content Act should provide that the Regulator, in determining the content that must be classified by the Classification Board, should have regard to matters including:
(a) the need for a classification benchmark, particularly for popular or new types of media content;
(b) the need for content to be classified by an independent decision maker;
(c) the classification of similar content in other jurisdictions;
(d) evidence of rigorous and reliable industry classification decision making;
(e) the capacity of the Classification Board to make timely classification decisions; and
(f) the cost to content providers of Classification Board decisions.
Feature films for cinema release
7.49 The ALRC considers that feature films for Australian cinema release provide a useful category of content that may be used to set an independent benchmark for classification decisions. These films have a high public profile and a large audience reach over time and across other media platforms—after their cinema release they may be downloaded online, sold on DVD, or screened on television. This is media content that, in all its forms, will ultimately be consumed by a significant proportion of the Australian population.
7.50 There is also a stronger consumer expectation of reliable and independent classification information for films screened in cinemas. This may be due, in part, to the costs incurred by people attending the cinema relative to other media content. This expectation may be reflected in the generally higher number of reviews of decisions and complaints made in relation to this content.
7.51 A consistent feature of classification systems in other jurisdictions, even where classification is voluntary, is the classification of films for cinema release by an entity that is ‘independent’ of industry. Organisations such as the Classification and Rating Administration in the United States, established by the Motion Picture Association of America and responsible for the classification of theatrical product, emphasises that its classifiers are parents who have no other connections to the film industry.
7.52 The Motion Picture Distributors Association of Australia (MPDAA) reasoned that government regulation of the classification process provides a consistent, independent and compliant framework for theatrical film classification, concurring with the ALRC’s view that these films provide a useful benchmark for classification decisions. Another industry stakeholder, the National Association of Cinema Operators, expressed the view that the current policy for cinema release films should not change and that these films should continue to be classified by the Board.
7.53 Singling out cinema release films is not about how they are accessed, or their impact relative to films provided in other formats, nor does the ALRC assume that major films will always be released first in cinemas. Rather, cinema release films provide a practical way to capture a finite, readily identifiable subset of content that has wide appeal, represents many entertainment genres and will likely have a significant reach across the wider Australia population, taking into account total distribution/views of these films additional to their cinema screenings.
7.54 Another option might be to require that all ‘large budget’ or ‘likely to be popular’ films (whether cinema release, screened online, broadcast on television or provided on DVD) go to the Board for classification. Some might suggest this is more consistent with the platform-neutral rule. However, defining a ‘large budget’ or ‘likely to be popular’ film for Board benchmarking purposes is arguably difficult and would create uncertainty for the Board, consumers and industry.
7.55 For these reasons, films that have a cinema release serve a useful independent benchmarking purpose and the ALRC recommends that, on commencement of the new scheme, they be classified by the Board. Where a film’s first release is on another platform and there is uncertainty about its cinema release, it may be pragmatic for the content provider to submit it to the Board for classification to avoid content being classified twice.
Computer games likely to be MA 15+ or higher
7.56 In Chapter 6, the ALRC recommends that only computer games likely to be classified MA 15+ or higher must be classified. As a popular form of media content that is produced for both children and adults, computer games should also be included in the range of content for which the Board provides a benchmark decision.
7.57 Computer games with strong or high level content—particularly violence—have been the subject of extensive public debate and controversy, although some of this controversy is likely to abate in light of the decision by the Standing Committee of Attorneys-General to introduce an R 18+ classification for computer games.
7.58 On balance, just as consumers might expect certain assurances about the classification of high profile, heavily promoted films, the ALRC considers that the profile of major release games and the ongoing concerns about violent computer games, justify Board classification.
7.59 Submissions from the computer games industry were generally opposed to Board classification of this subset of computer games. The Interactive Games and Entertainment Association (iGEA) argued that: the volume of games would be too great for the Board to cope with; that the games industry would be inequitably subject to high direct classification costs; and that if games at the MA 15+ classification are no longer legally restricted, they do not need to be classified by the Board. In relation to computer game applications (apps), there was additional concern that many developers (including individuals and young people) would have limited capacity to apply and pay for Board classifications.
7.60 The iGEA suggested that authorised industry classifiers, complemented by an efficient and reliable post-release audit and complaint handling system, would be a better way to manage this content.
7.61 While post-classification audits might be one way to signal benchmarks, original classification decisions made by an independent Board provide for frequent, proactive and publicly visible benchmarks, which the ALRC considers of greater benefit in an industry-focused classification model.
7.62 The content that the Board must classify has been substantially narrowed under the ALRC’s recommendations, providing greater capacity to deal with the larger volume of computer games. Classification bodies in other jurisdictions, such as the Entertainment Software Rating Board (ESRB) and Pan European Game Information (PEGI), also classify large volumes of computer games, the costs of which are recovered by fees to applicants for classification.
7.63 Furthermore, requirements to have certain content classified by the Board should not act as a ‘barrier to Australia’s participation in any international solution to classifying the massive amount of computer games that are delivered exclusively over the internet and on mobile devices’.
7.64 Cooperative efforts, whether by industry or government, to establish harmonised international classification platforms that involve input from national classification bodies should be encouraged. In this regard, the ALRC particularly notes the ESRB and PEGI initiatives to develop innovative and streamlined approaches for classifying mobile games and apps in partnership with industry peak bodies and commercial entities.
7.65 The Regulator’s power to determine what content must be classified by the Board provides the flexibility to amend the legislative instrument so that some computer games might in future be classified by alternative means. Furthermore, the ALRC recommends that the new scheme allow for some media content to be deemed to have the equivalent Australian classification, if it has been classified by a classification body or system, authorised for the purpose by the Regulator (see Recommendation 7–6). Over time, this should facilitate the availability of more classified content whilst reducing the administrative and cost burden on content providers.
Recommendation 7–3 The Classification of Media Content Act should provide that, on commencement of the new National Classification Scheme, of the content that must be classified, the following content must be classified by the Classification Board:
(a) feature films for Australian cinema release; and
(b) computer games that are likely to be MA 15+ or higher.
 See Ch 8 for information about modifications.
 However, see discussion of modifications and additional content in Ch 8.
 In 2009–10 five of the eight applications for review were for cinema release films. In 2010–11 there were only two reviews and both were for computer games: <http://www.classification.gov.au
/www/cob/classification.nsf/Page/ClassificationinAustralia_Whoweare_ClassificationReviewBoardDecisions_ClassificationReviewBoardDecisions> at 16 January 2012.
 In 2010–11 there were 80 complaints for 472 cinema release films classified. These films represent 8.5% of the Board’s workload for commercial applications yet they account for 12% of the complaints received. While the complaints relate to only a small number of titles, they spanned the range of classifications including content classified G and PG. On the other hand only 85 complaints were received for films and television series released on DVD though 3957 titles were classified: Classification Board, Annual Report 2010–11, 53, 54.
 See Appendix 3 for more information on classification and content regulation in other jurisdictions.
 Motion Picture Distributors Association of Australia, Submission CI 2513.
 National Association of Cinema Operators – Australasia, Submission CI 2514.
 Australian Federation Against Copyright Theft, Submission CI 2517; Motion Picture Distributors Association of Australia, Submission CI 2513; Classification Board, Submission CI 2485; Australian Home Entertainment Distribution Association, Submission CI 2478 argued that this proposal assumes that cinema release is the first release platform and that this is inconsistent with growing trends to release films first on other platforms such as DVD or video-on-demand.
 In Ch 6 the ALRC recommends that films screened at film festivals should be exempt from classification obligations.
 Duplication of classification would occur if an industry classifier classifies the product first but it is subsequently released in cinemas, requiring it to be classified again by the Board.
 Some sections of the community continue to express strong concerns about computer games. Censorship Ministers, at the Standing Committee of Attorneys-General meeting in December 2010, echoed these concerns by requesting separate classification guidelines for computer games that have regard to the concerns raised by Ministers generally and the interactive nature of computer games in particular. The proposed guidelines are available at <www.classification.gov.au>.
 Interactive Games and Entertainment Association, Submission CI 2470.
 Google, Submission CI 2512; Confidential, Submission CI 2510A; Confidential, Submission CI 2506.
 Interactive Games and Entertainment Association, Submission CI 2470.