ALRC’s views

13.27 One principle for reform is that classification regulation should be focused upon content rather than means of delivery.^[25] This suggests that the same rules should apply to the classification of all classifiable content—offline and online.^[26] Such a model would also be consistent with the reform principle that classification regulation should be kept to the minimum needed to achieve a clear public purpose and should be clear in its scope and application.

13.28 As discussed in Chapter 2, there are two regimes for classification of media content: under the classification cooperative scheme; and schs 5 and 7 of the Broadcasting Services Act. The ALRC considers that the framework for any new National Classification Scheme should unify these laws, as far as possible, and amalgamate the functions of existing regulators.

13.29 Given that the Commonwealth is responsible for regulating online content, using the legislative powers of the Parliament of Australia is the most practical way to ensure that any new framework for the classification of publications, films and computer games ‘aligns with the Commonwealth’s approach to regulating Internet content’ under the Broadcasting Services Act.^[27] There was considerable support expressed in submissions for the idea that the Parliament of Australia should enact new national classification laws—whether using Commonwealth legislative powers or powers referred by the states, where necessary.^[28]

13.30 The potential scope of Commonwealth legislative power in this area is broad and may be sufficient to legislate nearly all aspects of a new National Classification Scheme—especially as virtually all important media content will, in the future, be available on the internet or through other electronically distributed means. The Parliament of Australia is clearly able to legislate more broadly in relation to classification of media content than it has done to date.

13.31 If there are some areas of activity that should be covered by the new National Classification Scheme, and to which Commonwealth legislative powers may not extend, a referral of power by the states would ensure that Commonwealth classification legislation is comprehensive in its coverage and not vulnerable to constitutional challenge.

13.32 The Senate Legal and Constitutional Affairs References Committee reached similar conclusions in its review of the existing classification scheme in 2011. The Senate Committee recommended that the Australian Government request ‘the referral of relevant powers by states and territories to the Australian Government to enable it to legislate for a truly national classification scheme’.^[29] In the event that this was not able to be negotiated before June 2012, the Senate Committee recommended that the Government ‘prepare options for the expansion of the Australian Government’s power to legislate for a new national classification scheme’.^[30]

13.33 In the ALRC’s view, it seems unnecessary to seek referral of powers as a first step, because the Commonwealth’s legislative powers already may be sufficient and it is uncertain whether the states would be able to agree on a referral of power.

13.34 In constitutional terms, the new Classification of Media Content Act should be drafted to ‘cover the field’. That is, the Act should contain an express intention that it is to be exclusive within its field, so that any state legislation operating in the same field ceases to operate, pursuant to s 109 of the Constitution. This would mean that, for example, state legislation allowing for the classification or re-classification of media content under existing concurrent powers would be inoperative.

13.35 As discussed in Chapter 14, some state and territory enforcement legislation also contains provisions dealing with the regulation of online content, making it, for example, an offence to upload ‘objectionable material’ or ‘material unsuitable for minors’.^[31] This may provide another reason for the Australian Government to ‘cover the field’ and avoid inconsistent application of offences concerning online content.

13.36 State and territory law is not excluded by schs 5 and 7 of the Broadcasting Services Act. As a result, the states and territories ‘are free to enact laws imposing additional classification obligations leaving open the prospect of costly and inefficient jurisdictional inconsistencies being imposed on the providers of online content in Australia’.^[32] Telstra submitted that Commonwealth legislation touching on classification in this area should provide explicitly that it is intended to exclude concurrent State and Territory laws.^[33]

13.37 If the Australian Government determines that the states should retain concurrent powers in some areas—for example, in relation to restrictions on the sale or display of certain material such as magazines, or in relation to uploading media content onto the internet—the new Classification of Media Content Act would need to contain provisions reserving these powers to the states.