7.66 The ALRC recommends that, apart from the media content that the Regulator determines must be classified by the Board, all other media content may be:
- classified by the Board; or
- classified by an authorised industry classifier; or
- deemed to be classified because it has been classified under an authorised classification system.
7.67 Such media content will commonly include:
- feature films not for cinema release, for example, films on DVD, digital downloads available on the internet, and those broadcast on television;
- television programs that are broadcast on television (including subscription television), provided via television networks online and hosted on websites such as YouTube; and
- media content classified by the Board but later modified.
However, as discussed in Chapter 6, the ALRC recommends that this content should only be required to be classified if it is both likely to have a significant Australian audience and made and distributed on a commercial basis.
7.68 Any content that a content provider voluntarily chooses to have classified may also be classified by the Board or an authorised industry classifier—such as computer games likely to be classified G, PG and M. Later in the chapter, the ALRC recommends developing classification instruments to facilitate efficient classification of content, such as content that would otherwise not need to be classified.
7.69 Under the ALRC’s model, most content that must be classified may be classified by industry. This recognises industry’s longstanding involvement in the classification of television content and current arrangements whereby industry assessors make classification recommendations to the Board in relation to films, television series and computer games. Greater industry classification of content was widely supported—subject to appropriate government regulatory oversight.
7.70 Of the content that must be classified under the ALRC model, industry will generally be responsible for content that is relatively straightforward to classify or for which industry already has experience in classifying or assessing. As Telstra remarked:
giving classification responsibility for the most prominent and the most sensitive forms of content to the Classification Board would provide a reliable baseline of classification treatment for this content that could then be applied by authorised industry classifiers to less prominent and sensitive forms of content.
7.71 Allowing industry to classify this media content should significantly reduce the cost and administrative burden of classification. The ALRC considers that the efficiency and ease of industry classification, assisted by their experience and understanding of audience expectations, and a market incentive to be responsive to consumer feedback, should motivate industry to comply with classification requirements and may encourage the classification of a greater volume of content.
7.72 Later in this chapter, the ALRC recommends checks and safeguards, including mechanisms for consumer complaints, audits by the Regulator and reviews by the Board, all of which are designed to manage industry classification activities.
Recommendation 7–4 The Classification of Media Content Act should provide that, other than media content that must be classified by the Classification Board, media content may be:
(a) classified by the Classification Board;
(b) classified by an authorised industry classifier; or
(c) deemed to be classified because it has been classified under an authorised classification system.
7.73 Public confidence in the classification process and classification decisions is founded upon decision makers consistently applying specified classification criteria, adhering to agreed standards, and employing sound decision-making practices.
7.74 To that end, industry classifiers should apply statutory classification criteria and categories. The object is that all classification decisions—whether they are made by the Board or industry—will be made in the same way, using the same classification tools for the same classification outcome.
7.75 To ensure that all industry classifiers are classifying content consistently and properly applying the statutory classification criteria, industry classifiers should be authorised to classify content by the Regulator and should only be authorised if they have completed training approved by the Regulator.
7.76 Requiring the authorisation of industry classifiers provides the Regulator with the means to monitor the activities of an expanded and diverse group of classifiers—essential to its role in overseeing industry classification. The ALRC considers that such a requirement connects the classifiers to the broader regulatory framework and establishes a relationship that reinforces obligations to comply with classification requirements separate from and beyond those of industry alone.
7.77 Authorisation processes might also involve renewing authorisations periodically and undertaking refresher training—to ensure that classifiers stay up to date with changes in legislation, including the statutory classification criteria, and to properly maintain their classification skills and knowledge.
7.78 Authorised classifiers may be employed full-time by major content providers or they may be engaged by content providers on a classification task basis. Classifiers that are authorised and trained to meet the same minimum requirements and standards may have greater mobility and opportunities to work across media content industries.
7.79 The AGD currently develops all classification course material (with input from the Board) and delivers classification training for industry clients that wish to participate in the authorised assessor schemes and organisations, such as television networks, that employ industry classifiers. The ALRC considers that these arrangements would serve as a useful model for the Regulator’s training of industry classifiers.
7.80 Robust and comprehensive training of all industry classifiers ‘to ensure that there is consistency and accuracy in classification decisions’ was supported by stakeholders. Similarly, submissions noted that it was appropriate for the training and authorisation framework to be administered by the Regulator.
7.81 In the ALRC’s Discussion Paper, the ALRC asked whether classification training should only be provided by the Regulator, or whether it should become a part of the Australian Qualifications Framework. The Discussion Paper noted that private providers may wish to become involved in accredited training programs, or that the vocational education and training sector may wish to offer approved short courses in media classification.
7.82 A number of submissions, including from industry, argued that training should be exclusively provided by the Regulator ‘for the purpose of consistency and effective monitoring’. For example, FamilyVoice Australia submitted:
If it was made a part of the Australian Qualifications Framework this would mean that it could be offered by any provider subject to the normal accreditation and auditing under the AQF. With such a dispersal of the actual training providers it would remove the Regulator one step further from ensuring that all training adequately prepared classifiers to comply with the requirements of the National Classification Scheme.
7.83 A key theme in industry submissions was that the training regime should involve input from ‘experienced classifiers across a range of media content industries’ and incorporate ‘on-the-job’ training. The ALRC notes that classification bodies and Regulators in other jurisdictions provide classification training in-house, and as the Classification Board asserted:
[its] benchmarking role takes on equal, if not greater, significance in the approval of training course content which will equip authorised industry assessors to classify media content that aligns with community expectations in a consistent way, but that is also responsive and adaptive to any movement in benchmarks.
7.84 Some submissions from individuals expressed support for classification training becoming part of the Australian Qualifications Framework (AQF), some noting that it would enable more people to be ‘educated about how media is classified’. While the iGEA supported the general proposal, it suggested a cautious approach, as ‘classification training should be low cost’ and ‘able to be undertaken within a reasonably short amount of time’.
7.85 Other submissions observed that, even with the expansion of industry classification, there would still ‘likely to be only limited employment opportunities for professional classifiers’. Taking into account the number of classifiers and authorised assessors who are already working in media content classification, the ALRC notes the view that commercially provided AQF courses, may not be ‘sufficiently robust in the long-term’ and ‘would likely be conducted infrequently and in small numbers’.
7.86 Training should be conducted by professionals with appropriate qualifications. On balance, the ALRC considers it important that the Regulator, in monitoring industry classification decision-making, has continuous oversight by also developing and delivering classification training. This will help maintain a high level of public confidence in the quality of classification decision-making and the integrity of the classification scheme.
7.87 One body, the Regulator, should be responsible for the centralised development and delivery of classification training. To ensure that the training regime is robust and provides for skilled and knowledgeable industry classifiers, the ALRC suggests the new training framework include:
- a statutory requirement that provides for consistent, minimum classification standards, skills and knowledge for all authorised classifiers—by mandating that they complete the training program provided for by the Regulator;
- a comprehensively redesigned training program that provides for recognition of prior training and classification experience, supervised minimum hours of on-the-job classification and mentoring by experienced classifiers;
- requirements for minimum training qualifications for trainers delivering classification training;
- training developed in consultation with the Director of the Board;
- opportunities for industry classifiers to have input to training courses; and
- consideration of training time and cost.
7.88 While the Regulator should continue to have responsibility for delivering classification training, additional training demand—if it arises—could be met by external providers who should be accredited for the purpose. To this end, the ALRC suggests that the Regulator explore opportunities to accredit media content professionals or industry bodies that represent content providers with classification experience.
Recommendation 7–5 The Classification of Media Content Act should provide that industry classifiers must have completed training approved by the Regulator and be authorised by the Regulator to classify media content.
Authorised classification systems
7.89 The ALRC recommends that the Regulator should have the power to determine that films, television programs and computer games that have been classified under an authorised classification system are ‘deemed’ to have an equivalent Australian classification. For example, the Regulator might authorise the Pan-European Games Information system (PEGI), and determine that a computer game given a ‘7’ PEGI classification will be deemed to be classified PG in Australia.
7.90 However, to maintain the integrity of Australia’s classification scheme, the Regulator should only authorise robust and comprehensive classification processes that incorporate classification criteria comparable to those provided for under Australian law. Essentially, the Regulator must be satisfied that authorised classification systems deliver classification decisions comparable to the decisions that might be made if content were classified by an Australian classifier operating under the Australian classification scheme.
7.91 There are a number of advantages of recognising international classification systems. Most importantly, the significant growth in the volume of media content, often produced by individuals, suggests that some international cooperation is vital to ensuring that certain types of content will continue to be classified. The ALRC considers that an individual who creates a simple online computer game should not be expected to have his or her game classified under the national classification systems of every country in the world.
7.92 Similar approaches are used by New Zealand, in applying certain Australian and British classification decisions; and Canada, which references certain US classification decisions. A number of submissions to this Inquiry supported the concept of recognising classification systems in other jurisdictions. Classification systems developed by major global content providers might also potentially be recognised.
7.93 Authorising other classification systems would assist industry to efficiently provide classification information to Australian consumers under Australian classification markings. It would also provide for more classified content—without requiring additional classification activity on the part of the content provider. For example, there is scope to use this approach to achieve classification outcomes for content that industry might wish to have classified even though it may not be required to do so, for example, computer games with a likely classification of G, PG or M.
7.94 Where the Regulator considers that a particular item of media content has generated controversy in another jurisdiction or is likely to have a high profile on release, it would have the capacity to call it in for classification by the Board or request the content provider to classify the product, rather than allow it to be deemed. Content providers could be encouraged to make similar judgements of their own volition to minimise the risk of complaints or an application for review of the classification.
7.95 A legislative instrument should identify the authorised systems, the media content to which the provisions might apply and the corresponding Australian classifications. It could be crafted to be very specific, so that it might only apply to a certain type of content up to a particular classification (for example computer games likely to be classified MA 15+). It should also note that content may not be deemed to be Prohibited.
7.96 The Regulator’s determination concerning what content is to be classified by the Board is intended to operate in parallel with the Regulator’s determination about content that is deemed to be classified. The Regulator should not exercise its power to make a determination that would be inconsistent with the operation of another determination.
7.97 The Regulator’s website should explain to consumers what content is deemed and how the system works including providing links to the websites of the authorised classification system. In this way, consumers can become familiar with how the content is classified originally and search individual decisions to obtain more details on the reasons for the classification.
Markings and consumer advice for deemed content
7.98 In Chapter 8, the ALRC recommends that content that must be classified should carry Australian classification markings. This would also apply to content that both must be classified and has been deemed to be classified. Decisions for deemed content should be registered on the Regulator’s classification decisions database.
7.99 Content that must be classified and has been deemed to be classified should also carry consumer advice—where the authorised classification system provides consumer advice with classification decisions.
7.100 The obligation to use Australian markings for deemed media content should not, however, apply to content that is not required to be classified. This distinction may be important—as the Regulator should not be discouraged from authorising classification systems due to concerns about imposing statutory markings obligations on some content providers. However, it would be open to providers of this deemed content to apply the Australian markings if they choose to.
Authorised classification systems–an example
7.101 The following example demonstrates how the deeming recommendation might be implemented in practice.
7.102 The PEGI and the ESRB have been used because they are well established classification systems that operate across the major European and North American computer game markets. Their classification bodies are established independently of industry and classification decisions are designed to reflect community standards. PEGI, in particular, is an example of a harmonised classification model that grew from a cooperative approach seeking to develop a classification system that was acceptable to European Union member states.
7.103 Under the ALRC model, the Regulator would have the power to determine that the PEGI and the ESRB systems are authorised classification systems. The Regulator might further determine that a computer game that has been classified under either classification system is deemed to have the corresponding Australian classification as shown in the tables below.
7.104 The Regulator might also determine that if a game has been given a classification under both the PEGI and ESRB systems, then the game will be deemed to have the highest corresponding Australian classification.
Table 1: PEGI classifications and possible corresponding Australian classifications
Corresponding Australian classification
Table 2: ESRB classifications and possible corresponding Australian classifications
Corresponding Australian classification
Matters the Regulator must consider
7.105 The Classification of Media Content Act should set out the matters the Regulator should have regard to in determining whether another classification system should be authorised for the purpose of deeming.
7.106 It is important that consumers can be confident the system has been thoroughly assessed before being authorised. Content providers would also expect these other systems to be carefully assessed so the integrity and value of Australian classification decisions is not compromised.
7.107 While no two classification systems will be entirely aligned, the ALRC considers it important that elements of the National Classification Scheme be reflected in the authorised classification system including: independent decision-making; regard for community standards, particularly the need to protect children from harm; meaningful classification information; transparency of decisions and classification processes; availability and integrity of review mechanisms; efficient and accessible public complaints processes; comparable classification categories and criteria and endorsement by governments in other jurisdictions.
7.108 There may be concern about the lack of correlation between the classification categories and community standards that exist in Australia and other nations, given significant differences in cultural attitudes and social norms. However, the ALRC considers that there is potential for consistency in classification outcomes and, by having regard to the factors outlined above, it should be possible to conclude that decisions made under particular systems were arrived at in a similar manner and for similar reasons to decisions made Australian classifiers applying Australian statutory classification criteria and standards.
Recommendation 7–6 The Classification of Media Content Act should enable the Regulator to determine, in a legislative instrument, that certain films, television programs and computer games with a classification made under an authorised classification system, are deemed to have an equivalent Australian classification.
Recommendation 7–7 The Classification of Media Content Act should provide that in determining whether a classification system is an authorised classification system, the Regulator should have regard to matters including:
(a) the comparability of classification decision-making processes, classification categories and criteria with the Australian classification scheme;
(b) the independence and composition of decision-making bodies;
(c) the endorsement or adoption by national classification regulatory regimes;
(d) the transparency of classification decision-making processes and classification criteria;
(e) complaints and review mechanisms;
(f) public reporting of classification activities; and
(g) research and development activities.
Authorised classification instruments
7.109 The ALRC recommends that a new classification scheme should allow for the development of simple, accessible, fast, cost-effective classification instruments approved for the purpose of classification by the Regulator. While the Regulator may develop instruments, there are opportunities for industry to be innovative in this area and develop classification instruments.
7.110 An instrument might take the form of a dynamic online questionnaire and declaration that seeks information about the content provider and specific details about the nature of the content, based on the statutory classification criteria and the broader classification process. Ideally the instruments would provide for an automated classification decision that would also be simultaneously notified to the Regulator or registered in the classification decisions database.
7.111 Online content assessment forms and online classification applications already feature as part of the classification process in some jurisdictions:
The PEGI uses an online content assessment and declaration form which the publisher completes taking into account the possible presence of violence, sex and other sensitive visual or audio content. On this basis, PEGI allocates a provisional age rating that is subsequently verified by PEGI administrators against PEGI classification criteria before the publisher is issued with a licence authorising the use of the age-rating label and related content descriptors.
The ESRB requires publishers of online games only available for download directly through console and handheld storefronts to complete a form containing questions that address content across relevant categories. The responses to these questions determine the game’s rating, which is issued to the publisher once a DVD reflecting all disclosed content is received by the ESRB.
The British Board of Film Classification (BBFC) allows new online-only content to be submitted for classification through an online process under their ‘Watch and Rate’ service for which they guarantee a decision within 7 days of submitting the content.
7.112 The above systems still incorporate some additional ‘pre-release’ classification activity by the relevant classification body, whereas the ALRC envisages classification instruments, similar to those recently announced by the ESRB and PEGI, that generate stand-alone classification decisions that would not rely upon additional input or action by the Regulator, the Board or an industry classifier.
7.113 Both the CTIA-The Wireless Association Mobile Application Rating System with the ESRB and PEGI Express systems are fully automated web-based applications that deliver immediate classification decisions for mobile games and apps, based on the classification criteria used to classify computer games under their respective classification systems.
7.114 Likewise, the instruments recommended by the ALRC should generate formal classification decisions that reflect the statutory classification criteria and categories, consistent with all other classification decisions made under the new scheme. The Regulator should only authorise instruments that incorporate the statutory classification criteria and classification categories.
7.115 One stakeholder expressed concern that authorised classification instruments might affect consistency in classification decision-making. Foxtel also submitted that a simplistic ‘tick the box’ approach could not meaningfully account for central decision-making principles such as context and the subtleties in the presentation of classifiable elements. In the ALRC’s view, this should not be a barrier to developing innovative classification instruments to be used for a designated or limited class of content, particularly in light of developments in other jurisdictions that would confirm the viability of such tools.
7.116 To address these concerns, the Act might prescribe the content that may be classified using these instruments. For example it might prescribe that they only be used for content that is voluntarily classified, such as music with explicit lyrics, adult magazines, and G, PG and M computer games. This would encourage and facilitate the classification of content that is not required to be classified by law, without imposing a significant cost and administrative burden.
7.117 These authorised instruments could also be used to assist content providers to determine whether their content is adult content for the purpose of meeting obligations to restrict access.
7.118 Alternatively, the Act could enable the Regulator to determine what content may be classified using an authorised instrument. In which case, the Act should also prescribe the matters the Regulator must consider in determining what content might be classified using an instrument, such as the sophistication of the instrument and the need for particular types of content to be classified by trained classifiers.
Recommendation 7–8 The Classification of Media Content Act should enable the Regulator to develop and authorise classification decision-making instruments, such as online questionnaires.
 Content providers should not be compelled to use authorised industry classifiers. It should be open to them to submit content to the Board accompanied by the relevant fee for classification if they so choose.
 In Ch 10 it is recommended that content likely to be X 18+ does not need to be classified but must be restricted to adults. If the government determined that this content should be classified, then the ALRC recommends that it should be classified by authorised industry classifiers.
 As discussed in Ch 6 the ALRC uses the phrase ‘television program’ in the absence of a popularly understood, media-neutral alternative phrase. It is intended to capture television programs that are broadcast, distributed online, on physical media, or otherwise.
 Some major content providers might continue to classify content—even though it does not fall within the mandatory requirements—in response to consumer demand for classification information.
 The existing authorised assessor schemes would no longer be necessary under the ALRC recommendations for industry classification—as most of the content currently assessed under these schemes would be content able to be classified by industry classifiers.
 Free TV Australia, Submission CI 2519; Foxtel, Submission CI 2497; Arts Law Centre of Australia, Submission CI 2490; National Association for the Visual Arts, Submission CI 2471; Interactive Games and Entertainment Association, Submission CI 2470; Telstra, Submission CI 2469; E Steward, Submission CI 1048; C Foale, Submission CI 206.
 Telstra, Submission CI 2469.
 See Ch 9.
 For example, Free TV Australia, Submission CI 2519; Foxtel, Submission CI 2497.
 Free TV Australia, Submission CI 2519; Foxtel, Submission CI 2497; N Goiran, Submission CI 2482; Telstra, Submission CI 2469.
 Australian Law Reform Commission, National Classification Scheme Review, ALRC Discussion Paper 77 (2011), Question 7–2.
 Free TV Australia, Submission CI 2519; FamilyVoice Australia, Submission CI 2509; Foxtel, Submission CI 2497; Classification Board, Submission CI 2485; N Goiran, Submission CI 2482.
 FamilyVoice Australia, Submission CI 2509.
 Joint Submission Australian Broadcasting Corporation and Special Broadcasting Service, Submission CI 2521; Free TV Australia, Submission CI 2519; Foxtel, Submission CI 2497; Australian Subscription Television and Radio Association, Submission CI 2494.
 Classification Board, Submission CI 2485.
 A Hightower, Submission CI 2511; D Henselin, Submission CI 2473; Watch On Censorship, Submission CI 2472; D Mitchell, Submission CI 2461; M Smith, Submission CI 2456.
 Interactive Games and Entertainment Association, Submission CI 2470.
 R Williams, Submission CI 2515; Classification Board, Submission CI 2485.
 Classification Board, Submission CI 2485.
 New Zealand ‘cross-rates’ films and computer games classified G, PG or M by the Australian Classification Board in the first instance or if the content has not been classified in Australia, they refer to decisions of the British Board of Film Classification, Films, Videos, and Publications Classification Regulations 1994 (NZ), cls 4(1),(2). Cross-rated films must carry the corresponding New Zealand classification label but computer games need not—that is, they may retain the classification marking of the country from which the classification decision originated: <http://www.censorship.govt.nz/industry/industry-games.html> at 20 January 2012. Since 2005, a number of Canadian provinces including Manitoba, Ontario and British Columbia have legislated to adopt the classifications for computer games classified by the Entertainment Software Rating Board: See Entertainment Software Ratings Board, Canadian Advisory Committee to Provide Advice on Video Games (Press Release, 10 June 2005).
 Interactive Games and Entertainment Association, Submission CI 2470; A Van Der Stock, Submission CI 1398; D Gormly, Submission CI 643; D Myles, Submission CI 98.
 Internet Industry Association, Submission CI 2528; Google, Submission CI 2512.
 M McBride, Submission CI 1928; L Geyer, Submission CI 1863; S Schwietzke, Submission CI 1740.
 ‘The fact that PEGI has been designed to meet varied cultures standard and attitudes across the participating countries and that society representatives such as consumers, parents and registered groups were involved in the set up of the PEGI system is of utmost importance’, Viviane Reding, European Commissioner for Education and Culture, ‘Inauguration of the PEGI system’ (Official Launch and Inauguration Meeting of the PEGI Boards of Governance and Appeal, April 2003).
 As explained earlier in the chapter, the Regulator may determine that deeming applies to a narrow and more specific segment of computer games (or films or television programs as the case may be).
 For example, in relation to religion, violence, drug use and homosexuality.
PEGI’s online content assessment and declaration form at <www.pegi.info/en/
index/id/1184/media/pdf/235.pdf> at 15 August 2011.
 For more information about the ESRB’s process for classifying computer games, see <www.esrb.org/ ratings/ratings_process.jsp> at 2 August 2011.
 For more information
on the BBFC’s Watch and Rate system, see <www.bbfc.co.uk/customers/
watch-and-rate/> at 1 September 2011.
 The CTIA–The Wireless Association Mobile Application Rating System with ESRB was announced on 29 November 2011. The PEGI Express system was launched on 31 August 2011.
information about these system may be found at <www.ctia.org/media/press/body.cfm/
prid/2147> at 24 December 2011 and <www.pegi.info/en/index/id/1068/nid/media/pdf/352.pdf> at 24 December 2011.
 I Graham, Submission CI 2507.
 Foxtel, Submission CI 2497.
 See Ch 10.