Commonwealth legislative powers

13.15 A threshold question concerning a National Classification Scheme centred on a new Classification of Media Content Act, is the extent to which the Parliament of Australia has legislative power to enact legislation establishing such a framework.

13.16 The Parliament of Australia may legislate for the classification of online and mobile content and broadcasting relying on s 51(v) of the Australian Constitution (the ‘communications’ power). This is one constitutional basis for schs 5 and 7 of the Broadcasting Services Act.

13.17 It appears that the Parliament of Australia also has power to make classification laws with respect to publications, films and computer games:

• imported into, or exported from, Australia or dealt with in the course of interstate trade—relying on s 51(i) of the Constitution (the ‘trade and commerce’ power);^[16]

• uploaded to, downloaded from, sold, distributed, or advertised on the internet or sent through the post—relying on s 51(v) of the Constitution (the ‘communications’ power);

• sold, distributed, advertised or otherwise dealt with by foreign or trading corporations—relying on s 51(xx) of the Constitution (the ‘corporations’ power);^[17] and

• sold, distributed, advertised or otherwise dealt within the territories—relying on s 122 of the Constitution (the ‘territories’ power).^[18]

13.18 The external affairs power contained in s 51(xxix) of the Constitution might also be invoked, for example, with respect to:

• restrictions on child pornography—recognising Australia’s international obligations under the United Nations Convention on the Rights of the Child;^[19] or

• constraints on freedom of expression—recognising Australia’s international obligations under the International Covenant on Civil and Political Rights.^[20]

13.19 Despite this potential wide scope of Commonwealth legislative power, there may be gaps—some areas of activity that should be covered by the new National Classification Scheme but to which Commonwealth legislative powers may not extend. For example, it may be problematic to apply Commonwealth classification laws to material published by individuals or unincorporated entities and sold or distributed only within one state.

Referral of state powers

13.20 While any gaps in Commonwealth legislative power may not be significant, and might be left to the states to regulate, such gaps could be covered by a referral of state powers to the Commonwealth under s 51(xxxvii) of the Australian Constitution.

13.21 Section 51(xxxvii) of the Australian Constitution gives the Parliament of Australia power to make laws with respect to matters referred to the Parliament by the Parliament of any state. The states have referred a number of matters to the Commonwealth including, for example, corporations law and counter-terrorism.^[21]

13.22 To address any remaining or potential gaps, a state referral of powers may be stated to cover all matters relating to the operation of new Commonwealth classification legislation to the extent that the matter is not otherwise included in the legislative powers of the Parliament of the Australia.^[22]

Inconsistency of Commonwealth and state laws

13.23 Where the power to legislate is held concurrently by the Commonwealth and the states, as it is under most of the heads of power on which a new Classification of Media Content Act would rely, questions involving inconsistency of laws may arise.

13.24 Section 109 of the Constitution provides that when ‘a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall to the extent of the inconsistency, be invalid’.

13.25 As discussed above, a number of states have concurrent classification powers with respect to publications, films and computer games also covered by the Commonwealth Classification Act.^[23]

13.26 Schedules 5 and 7 of the Broadcasting Services Act provide expressly for concurrent operation of state and territory laws. Both schedules state that it is the intention of the Parliament that the schedules are ‘not to apply to the exclusion of a law of a State or Territory to the extent to which that law is capable of operating concurrently’.^[24]