ALRC’s proposals

Enforcement under Commonwealth law

14.35 The existing classification cooperative scheme, under which the Commonwealth classifies publications, films and computer games, and the states and territories enact complementary enforcement legislation, has resulted in substantial variations in state and territory enforcement provisions. This situation can be seen as inconsistent with the whole idea of a ‘national scheme’ for classification.

14.36 There are also inconsistencies in the regulation of classification rules between the classification cooperative scheme and schs 5 and 7 of the Broadcasting Services Act. For example, content rated X 18+ is prohibited content under the Broadcasting Services Act, but may be sold as a DVD or magazine in some Australian jurisdictions. Dr Gregor Urbas and Tristan Kelly noted that, with media convergence and increasing use of the internet, ‘this inconsistency may be out of step with community standards’.^[30]

14.37 Many stakeholders emphasised the importance of consistency in the enforcement of classification laws,^[31] including in relation to international standards.^[32] Lack of consistency was identified as causing a number of problems, including higher compliance costs for media content publishers and distributors.^[33]

14.38 Some stakeholders—including some state or territory governments—may consider it an advantage for states and territories to be able to implement their own enforcement arrangements. However, arguably, in ‘today’s digital media landscape, the concept of state boundaries is no longer applicable’.^[34] As the report of the Senate Legal and Constitutional Affairs Committee Inquiry observed, the fact that state and territory law enforcement agencies are responsible for law enforcement regarding classification matters is a ‘particularly disjointed and fractured arrangement of the so-called “cooperative scheme”’. ^[35]

14.39 The ALRC considers that the new Classification of Media Content Act should provide for enforcement of classification laws under Commonwealth law. The Act should require media content providers to have certain content classified—whether by the new Classification Board or by authorised industry classifiers—and provide offences and penalties for failure to do so in accordance with the requirements of the legislation and approved industry codes of practice. It would be preferable if the Classification of Media Content Act also provided for restrictions on access to content, or on the sale, screening, distribution or advertising of content.

Alternative approach

14.40 Under the ALRC’s proposals, existing inconsistencies in state and territory legislation concerning restrictions on the sale, distribution or advertising of classifiable publications, films and computer games would have to be resolved in the new Classification of Media Content Act—for example, in relation to the sale and distribution of X 18+ films and DVDs.

14.41 For this, and other, reasons—including the cost of enforcing classification laws—the Australian Government may be unwilling to enact new laws with regard to the enforcement of classification laws. In that case, the Classification of Media Content Act may have to contain provisions recognising that enforcement will be a matter for the states and territories.

14.42 However, without further agreement between the Commonwealth, states and territories, this would be likely to result in a new National Classification Scheme with similar inconsistencies in enforcement provisions to those that exist at present.

14.43 The ALRC proposes that, therefore, if the Australian Government determines that the states and territories should retain powers in relation to the enforcement of classification laws, a new intergovernmental agreement should be entered into under which the states and territories agree to enact consistent legislation providing for the enforcement of classification laws with respect to publications, films and computer games.

14.44 Commonwealth, state and territory ministers should agree on the best approach to classification-related offences and penalties and to apply, or enact, uniform provisions. Two main approaches are possible in this regard.

14.45 First, agreement might be reached on adopting enforcement provisions as part of a complementary ‘applied’ law scheme for enforcement of classification laws. Under such a scheme, provisions would be enacted by one jurisdiction (most likely the Commonwealth), and then applied by other jurisdictions.^[36] Alternatively, the states and territories might enact mirror legislation—that is, one jurisdiction enacts a law that is then enacted in similar terms by the other jurisdictions.^[37]

14.46 In this context, the existing classification cooperative scheme has been criticised,^[38] because the Classification Act provides that Commonwealth, state and territory ministers must agree to any amendment to the Classification Code and on classification guidelines or amendments to those guidelines;^[39] and the Intergovernmental Agreement under which the scheme is established and maintained may be amended only by unanimous agreement.^[40]

14.47 The need for unanimity has been criticised^[41] and it has been suggested that any new intergovernmental agreement should provide only that amendments require the support of the Australian Government and six other parties, including the ACT.^[42]

Offences and penalties

14.48 If, as is proposed, the new Classification of Media Content Act provides for the enforcement of classification laws under Commonwealth law, an appropriate regime of offences and penalties should be incorporated in the Act, in accordance with best practice guidance.

14.49 Best practice guidance in the Commonwealth law context includes the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers. This provides information about, among other things, provisions of the Criminal Code (Cth) and Crimes Act 1914 (Cth) that have a bearing on the way that offences and related provisions should be framed; other legal and policy considerations that are relevant to how offence, civil penalty and enforcement provisions are framed; and suggested precedents for various types of offence, civil penalty and enforcement provisions.^[43]

14.50 One starting point for framing new offence and penalty provisions would be likely to be those set out in sch 7 of the Broadcasting Services Act—after taking into account any changes to the Broadcasting Services Act that may result from the conclusions of the Convergence Review.^[44]

14.51 The sch 7 offence and penalty regime, with significant adaptation, could be extended to apply to publications, films and computer games. This might mean that, for example, the sale of unclassified or RC content would be punishable under the new Classification of Media Content Act by criminal and civil penalties; and the broadcasting of unclassified television programs would be punishable by criminal, civil and administrative penalties (such as licence removal for repeated breaches). It may also be appropriate, in relation to some offences involving publications, films and computer games, to provide for confiscation of unclassified products as a penalty.

14.52 Existing state and territory provisions are also starting points for the framing of new offences and penalties. Some states, for example, operate infringement notice schemes for minor breaches of classification laws. Under an infringement notice scheme, a non-judicial officer is empowered to give a notice alleging the offence to a suspected offender providing that the suspected offender may pay a specified penalty to avoid prosecution.^[45] For example, in South Australia, offences under the Classification (Publications, Films and Computer Games) Act 1995 (SA) are subject to ‘expiation fees’, set at around 5% of the maximum fine.^[46] Failure to comply with a call in notice, for instance, is punishable by a maximum fine of $5,000 and may be subject to an expiation fee of $315.^[47]

14.53 This approach might be adopted for some minor offences in the new Classification of Media Content Act (or harmonised state and territory enforcement legislation). The Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers states that an infringement notice scheme ‘may be employed for relatively minor offences, where a high volume of contraventions is expected, and where a penalty must be imposed immediately to be effective’.^[48]

Conducting enforcement activity

14.54 If the new Classification of Media Content Act provides for enforcement of classification laws, questions arise about which agencies will be responsible for law enforcement activity.

14.55 This is relatively straightforward in the case of online content. Enforcement mechanisms, similar to those exercised by the ACMA under the Broadcasting Services Act, would be exercised by the new Regulator.^[49] Depending on how the new Regulator is staffed and resourced, the ALRC would expect it also to have a role in investigating and enforcing classification laws in relation to publications, films and computer games, including through the issuing of infringement notices.

14.56 The Regulator would initiate criminal prosecutions through the Office of the Commonwealth Director of Public Prosecutions (CDPP) and bring any civil or administrative actions, such as obtaining cessation of service orders. The CDPP is responsible for the majority of prosecutions under Commonwealth criminal law—although some regulators such as the Australian Taxation Office, the Australian Securities and Investments Commission and the Australian Competition and Consumer Commission, have power to prosecute some offences. The Regulator might be empowered to prosecute certain more minor offences and could, for example, issue infringement notices, if such a scheme were instituted.

14.57 The AFP might undertake the investigation of serious criminal offences, for example, providing content that would be classified RC over the internet on a commercial basis. It is questionable, however, whether the AFP would choose to place any higher priority on enforcement activity in relation to more minor offences, such as the prohibited sale or display of R 18+ or X 18+ magazines or DVDs, than state and territory police currently do.

14.58 There is no reason why state and territory law enforcement agencies could not also be involved in the enforcement of Commonwealth classification-related offences. Under existing legislation, state and territory police may perform functions related to the enforcement of Commonwealth legislation. These include powers of arrest, executing search warrants and confiscating property.^[50] State and territory authorities may also institute proceedings for any Commonwealth offence in state and territory courts.^[51] The willingness of state and territory law enforcement agencies to become involved in classification-related enforcement may become an issue that needs to be resolved through inter-governmental discussions, including about the funding of enforcement activities.