Discussion Paper outline

1.34 This chapter provides an outline of the background to the Inquiry and an analysis of the scope of the Inquiry as defined by the Terms of Reference. It also describes the development of the evidence base to support the law reform response as reflected in the proposals and questions included throughout the Discussion Paper.

1.35 Chapter 2 begins by briefly describing the historical background to classification laws. The chapter then describes the framework of the current National Classification Scheme, comprised of the classification cooperative scheme for publications, films and computer games, and classification-related law as it applies to online and mobile content under the Broadcasting Services Act. The roles of the Classification Board, the Classification Review Board and the ACMA are outlined, along with that of industry under co-regulatory codes of practice for online and broadcast content. The chapter assesses the current scheme, looking at aspects that work reasonably well and those that are in need of reform. The chapter concludes by noting the strong arguments made to the ALRC about the need for fundamental reform, and for a new National Classification Scheme.

1.36 Chapter 3 outlines factors in the media environment that necessitate reform of classification law and the development of a new National Classification Scheme. It identifies the range of trends which have been associated with media convergence, including increased access to high-speed broadband internet, digitisation, globalisation, accelerated innovation, the rise of user-created content and the changing nature of the media consumer, and the blurring of distinctions between public and private media consumption. It also draws attention to findings arising from the Convergence Review, and recent work undertaken by the ACMA on ‘broken concepts’ in existing broadcasting and telecommunications legislation and their relevance to media classification.

1.37 Chapter 4 identifies eight guiding principles for reform directed to providing an effective framework for the classification of media content in Australia. These principles should inform the development of a new National Classification Scheme that meets community needs and expectations, while being more effective in its application and responsive to the challenges of technological change and media convergence. The eight guiding principles are that:

(1) Australians should be able to read, hear, see and participate in media of their choice;

(2) communications and media services available to Australians should broadly reflect community standards, while recognising a diversity of views, cultures and ideas in the community;

(3) children should be protected from material likely to harm or disturb them;

(4) consumers should be provided with information about media content in a timely and clear manner, and with a responsive and effective means of addressing their concerns, including through complaints;

(5) the classification regulatory framework needs to be responsive to technological change and adaptive to new technologies, platforms and services;

(6) the classification regulatory framework should not impede competition and innovation, and not disadvantage Australian media content and service providers in international markets;

(7) classification regulation should be kept to the minimum needed to achieve a clear public purpose, and should be clear in its scope and application; and

(8) classification regulation should be focused upon content rather than platform or means of delivery.

1.38 Chapter 5 introduces the ALRC’s proposed new National Classification Scheme. The chapter briefly summarises the overall rationale for the establishment of the scheme, highlighting its key benefits and how the scheme responds to the guiding principles of reform identified in Chapter 4. The chapter presents centrepiece proposals establishing the proposed new scheme, through the enactment of a new Classification of Media Content Act. Under the Act, a single agency (the Regulator) would be responsible for regulating the classification of media content.

1.39 Chapter 6 considers what content should be classified under the proposed National Classification Scheme. It starts by considering distinguishing features of content that might be used to determine whether something must be classified. The ALRC then proposes that the following content (subject to some exemptions) must be classified before it is sold, hired, screened or distributed in Australia:

• feature-length films produced on a commercial basis;
• television programs produced on a commercial basis;
• computer games produced on a commercial basis and likely to be MA 15+ or higher;
• all media content likely to be X 18+ (that is, sexually explicit adult content); and
• all media content that may be RC.^[18]

1.40 The classification of most other media content—for example, books, magazines, websites, music, and computer games now likely to be G, PG and M—should become or remain voluntary. However, the ALRC proposes that industry bodies should develop codes of practice that encourage the voluntary classification of some of this other content—such as lower-level computer games—using the categories, criteria, and markings of the National Classification Scheme. The ALRC also proposes that media content should be classified before: enforcement agencies require someone to stop distributing content (whether on the internet or otherwise); enforcement agencies prosecute someone for distributing content; and before the content is added to any proposed list of content that must be filtered by internet service providers.

1.41 Chapter 7 considers who should be responsible for classifying content that must be classified. It proposes that some classification decisions now made by the Classification Board may instead be made by authorised industry classifiers, subject to review by the Classification Board and regulatory oversight. The ALRC proposes that the Board should continue to classify:

• feature-length films produced on a commercial basis for cinema release;
• computer games produced on a commercial basis and likely to be MA 15+ or higher;
• content that may be RC;
• content submitted by the Minister, the Regulator or another government agency; and
• content that needs to be classified for the purpose of enforcing classification laws.

1.42 The ALRC also proposes that, apart from this media content that must be classified by the Board, all other media content may be classified by authorised industry classifiers, including:

• feature-length films not for cinema release and television programmes (for example, films and television programs on DVD, the internet, and television); and
• computer games likely to be classified G, PG and M.

1.43 Chapter 8 proposes that access to all media content—online and offline—that is likely to be R 18+ must be restricted to adults. Content providers should restrict access so that minors are protected from high-level content, even if it is not possible to have all of the content formally classified. The ALRC also proposes that access to content classified R 18+, or X 18+ where it is legal to distribute, must also be restricted to adults. The ALRC proposes that methods of restricting access to online and offline content should be set out in industry codes, approved and enforced by the Regulator. The new scheme should also provide for a principled rule that ensures advertisements for classified content—such as advertisements for films, television programs and computer games—are suitable for their audience. The chapter concludes by considering whether the public display of some media content should be prohibited.

1.44 Chapter 9 considers the classification categories and criteria used to classify content across different media, formats and platforms in Australia. The ALRC proposes that these be consolidated and harmonised, and that the Classification of Media Content Act should provide for the following set of classification categories:

• C (Children);
• G (General);
• PG 8+ (Parental Guidance);
• T 13+ (Teen);
• MA 15+ (Mature Audience);
• R 18+ (Restricted);
• X 18+ (Restricted); and
• RC (Refused Classification).^[19]

1.45 The ALRC also proposes that classifiers must assign consumer advice (such as ‘Strong violence’ or ‘Moderate coarse language’) to all content they classify, except content classified C or G. Classifiers operating under the proposed National Classification Scheme should also use the one set of ‘statutory classification criteria’ to make classification decisions, although industry codes of practice may describe the criteria in more detail and explain their application to specific media. The statutory criteria and their elaboration in industry codes should be reviewed every five years in consultation with stakeholders and the community and in light of relevant research.

1.46 Chapter 10 outlines the relevance of the RC category to this Inquiry and describes the legislative framework for RC content. The current scope of the category is discussed and criticisms are noted. The ALRC proposes that the Classification of Media Content Act should provide that, if content is classified RC, the classification decision should clearly state whether the content comprises real depictions of actual child sexual abuse or actual sexual violence. Identified in this way, such content may be added to any blacklist of content for the purpose of filtering at the ISP level. The chapter also discusses a pilot study being conducted by the ALRC to research community standards with regard to the current higher level classification categories—MA 15+ up to and including RC.

1.47 Chapter 11 focuses on industry classification codes of practice and proposes that the Classification of Media Content Act enable the development and operation of such codes, consistent with the statutory classification categories and criteria contained in the Act. The intention is that these codes would assist in the interpretation and application of the statutory classification categories and criteria and introduce some additional flexibility to the regulatory scheme. The chapter examines the possible processes for the development of industry classification codes, and proposes mechanisms for the approval and enforcement of codes by the new Regulator. The ALRC also proposes that where an industry classification code of practice relates to media content that must be classified or access to which must be restricted, the Regulator should have power to enforce compliance.

1.48 Chapter 12 discusses the ALRC’s proposal for a new Regulator with primary responsibility for regulating the new National Classification Scheme. The Regulator would be responsible for a range of functions that are currently performed by the Classification Branch of the Attorney-General’s Department, the Director of the Classification Board, and the ACMA. The Regulator would also have a range of new functions necessary for the operation of the scheme. The Regulator would be responsible for most regulatory activities related to the classification of media content—both offline and online. The Classification Board would be retained as an independent statutory body responsible for making some classification decisions and auditing decisions made by industry classifiers.

1.49 Chapter 13 discusses the legislative and constitutional basis for the existing Commonwealth-state cooperative scheme for the classification of publications, films and computer games and the Broadcasting Services Act. The chapter proposes that the new Classification of Media Content Act be enacted pursuant to the legislative powers of the Parliament of Australia, supplemented by state referrals of power, if necessary.

1.50 Chapter 14 discusses enforcement of classification laws. An important part of the rationale for having a new National Classification Scheme is to avoid inconsistency in enforcement of classification laws and associated penalties. The ALRC concludes that the Australian Government should, therefore, be responsible for the enforcement of classification laws and makes proposals for a regime of offences and penalties. If the Australian Government determines that the states and territories should retain enforcement powers, the ALRC proposes a new intergovernmental agreement be entered into under which the states and territories agree to enact legislation to provide for the enforcement of classification decisions made under the new Classification of Media Content Act, but only with respect to publications, films and computer games.